Blodgett v. Webster

24 N.H. 91 | Superior Court of New Hampshire | 1851

Perrey, J.

The plaintiffs proved the sale and delivery of the goods, for which they declared; but it appeared that they took notes from the defendant as security, and they could not recover for the goods without producing the notes on trial, or showing otherwise that the defendant had not paid, and was not liable to pay them. Nor could the plaintiffs recover on the notes without producing them, until they had laid a proper foundation for secondary evidence. The plaintiffs, gave the defendant notice to produce the notes, and he produced on trial, under the notice, two papers, as and for these notes; that is to say, as and for the notes declared on. The plaintiffs’ evidence went to shew that these were the. papers which were given for the goods; the witness testified directly to that fact. There were then no other notes given for the goods which the defendant had paid or was liable to pay. So far as regards the plaintiffs’ claim for the goods, if-they shewed these notes had not been paid, or in some other way discharged, the defence, which rested on the taking'.of the notes, was answered.

As to the plaintiffs’ claim on the notes, the papers produced agreed with the notes declared on, except that they had not on them at the time of the trial the signature .of the defendant; but the parts of the papers where we should expect the signatures to have been made were torn off, and the testimony was express to the fact that Webster’s name was on thg papers as maker, when they were delivered as security for the goods.

Was the evidence competent to show that Webster’s name was put on the notes by him or by his authority ? The defendant delivered these notes to the plaintiffs as security for the goods, with his name signed on them as maker; the plaintiffs received the notes as security. This is not only competent but conclusive evidence against the defendant that the notes were signed by him or by his authority. If the name of the .defendant had been put on the notes by any third person, and he had delivered them as his, and obtained credit for the goods on that security he would be held to have adopted the signatures and made them his own, though they had been placed on the notes without any antecedent authority. In addition to this, the defendant produced these papers on notice, as the notes in question, and when produced, can-celled, insisted upon them as evidence that he had paid the notes and the price of the goods for which they were given. We think that here was not only competent, but abundantly sufficient evidence to shew that the papers produced were the notes given for the goods by the defendant, and that they were signed by him. Doe v. Hemming, 2 C. & Payne 462; Bradshaw v. Bennett, 5 C. & Payne 48.

The notes given for the goods were in the defendant’s hands, and produced by him on trial, cancelled. This was pima fade evidence that they had been paid. The plaintiffs undertook to prove that in fact sixty per cent, only of the notes had been paid, on a compromise obtained by the fraud of the defendant ; and they sought to recover the balance of forty per cent. Was there competent evidence to rebut the presumption that the notes produced by the defendant had been paid by him ?

The plaintiffs’ evidence went to shew—

That the defendant represented to his creditors, including the plaintiffs, that he was unable to pay the whole of his debts.

That the plaintiffs and his other creditors agreed with the defendant to take sixty per cent, of their debts and give up the balance.

That the plaintiffs, according to the terms of their agreement, delivered all these notes, without actual payment at the time, and received sixty per cent, of their amount, in new notes.

That nothing moré was paid on these notes when they were delivered out, nor so far as the plaintiffs’ book-keeper has any knowledge, at any other time.

That the balance of forty per cent, was carried in the. plaintiffs’ books to the account of profit and loss.

Here then was an agreement to take sixty per cent.; that amount was paid according to the agreement; the notes were delivered out without other payment at the time ; the person whose business it was to know, has no knowledge of any further payment, and the plaintiffs treated the forty per cent, as a final loss, by carrying it, in the usual course of jtheir business, to the account of profit and loss. We have not the least doubt that this was competent evidence that the defendant obtained the notes on payment of sixty per cent., in pursuance of his agreement to that effect.

The memorandum of Arnold was made at the time, and the alteration was made to correct a mistake afterwards discovered. The alteration was not made -by the plaintiffs", but by the witness, and was satisfactorily explained. 1 Gr. Evid. 564, 566, 569, 436, 437, 438.

Parsons and others were the agents of the plaintiffs in the negotiation of the compromise. A representation to these agents, or to any one of them, respecting the business they had in charge, must be regarded as a representation made to their principals. The letters admitted in evidence were addressed to the agents, Parsons and others, and were on the subject of the compromise. They were produced by the plaintiffs, t® whose business they related, and this must be taken as evidence that the defendant sent them according to their address, and that they came to the plaintiffs thi-ough their agent, Parsons and others. How else should they be in possession of the plaintiffs ? We do not see how the evidence would have differed in principle if the letters had been addressed to the plaintiffs themselves, instead of their agents. In both cases, being written by the defendant, and having passed from his hands, and being found in possession of the parties to whom they were addressed, they must be presumed, till the contrary is shewn, to have been seasonably received by the persons to whom they were addressed. The agent would receive and hold the letters on behalf of the principal, and the production by' the principal would be evidence that they were received for him by the agent.

The written statement made by the defendant to his creditors, was shewn to have been lost. This made it competent for the plaintiffs to shew the contents by other evidence. A witness, who testified to verbal statements of the defendant, had also seen the written statement, and testified that the written and verbal statements agreed. This was competent evidence of the contents of the writing. The written statement of the defendant was not a contract which could not be varied by parol. If the verbal and written statement had disagreed, there cduld be no legal objection to prove both as evidence of misrepresentation.

The defendant now objects that the copies of the deeds from the registry in Maine were not duly authenticated, and that the execution of the original deeds, should have been proved. On trial, he objected generally to the introduction of the evidence, but did not then take the specific exceptions which he now does.

•The plaintiffs gave the defendant notice to produce the deeds ; and summoned his brother, the grantee, with a duces tecum; the grantee was put on the stand and examined as a witness ; neither the witness nor the defendant produced either of the deeds. As the witness claimed title under the deed to him, he was probably not bound to produce it, though that question was not raised on trial, and is not necessary to be discussed here. Marston v. Downs, 6 Carr. & Payne 381; Mills v. Oddy, 6 Carr. & Payne 728.

The plaintiffs took all the usual and necessary means to produce the original deeds, and were in a situation to give secondary evidence. If the defendant had pointed his exceptions on trial as he does now, the plaintiffs would have had opportunity to remove them by additional evidence. These exceptions not having been made at the proper times, must be considered waived.

Deeds made to keep the property of the defendants from his creditors, and prevent them from taking it to secure and satisfy their debts, and so leave it in the power of the debtor to take his own time and use his own manner for applying it to the payment of his debts, would clearly be made to delay his creditors, and deprive them of the right which the law gives them of taking their remedy into their own hands under legal process; and this would be such a fraud as would make the conveyances void as to creditors.

The case set up by the plaintiffs was, “ that they were induced by fraudulent sales and conveyances of the defendant’s property, and by fraudulent representations and concealments of the state of Ms debts and property,” to make the compromise. Of course it cannot be understood that they claimed to be relieved from the compromise, 'if they knew, at the time, of the frauds and concealments of which they complain ; and there is nothing in the case to show that, when they made the compromise, they had any knowledge of the fr^ud on which they rely in this case.

The charge of the court on this part of the case, taken in reference to the positions of the parties, and the evidence reported, was in effect, that if the defendant made conveyances of Ms prop-erty for any of the purposes enumerated, and the plaintiffs, believing them to be fair and real, and such as they appeared to be on their face, were induced by them to make the compromise, they would not be bound by it. For instance, if they knew of the conveyance to John Webster, and believed it to be in substance what it was in form, a real conveyance for a valuable consideration, when in fact it was a sham, and were induced by this and other like conveyances to make the compromise, they would not be bound by it; and this would undoubtedly be correct. It would amount to a representation that the property was not the defendant’s, and therefore not liable to be taken for the satisfaction of his debts.

The defendant’s purchase of a farm for thirty-one hundred dollars, in sixteen months after the compromise, was competent, with other evidence, to shew that at the time of the compromise he had property which he did not apply to the payment of his debts. If the defendant had in sixteeen months acquired large means, he should have been prepared to shew it.

There is nothing in the objection to the form of the action. The balance of the defendant’s debt has not been paid. Unless it is discharged by the compromise, it remains due. If the plaintiffs can avoid and set aside the compromise, they can recover the balance exactly as if no compromise- had been made.

Judgment on the verdict.