Brightman v. Reeves

| Tex. | Jul 1, 1858

Roberts, J.

Thb Court charged the jury, that “ if Bright-man or Harper purchased the note without notice, and without such circumstances coming to their knowledge as should have put them on enquiry, then they are not liable to this action ; but if, on the contrary, it be proved that Brightman or Harper bought the note with express notice of the pledge, or that the same was offered to them for a price so much below its real value as should have excited their reasonable suspicion, that there was fraud in the transaction, then they are liable for such note.”

This charge makes the liability of these defendants depend upon their having notice that the note was pledged to Jarnett & Morgan. In this it was erroneous. For if the note was pledged, and Lloyd expressly authorised Jarnett & Morgan to sell it, upon being called on to redeem, then a sale at a reasonable price would be valid, whether the purchaser knew that he was buying property which was pledged or not.

Even though such express authority had not been given, they had a right to give Lloyd notice and sell the pledge to pay themselves the debt due them. (Coftelyon v. Lansing, 2 Caine’s Cases, 204; Edward’s on Bailments, 248; Story on Bailments, Sec. 348.)

The evidence does not show that Harper or Brightman knew -anything about the note being pledged. Nor does it show what the note was worth.

In determining the damages, the Court below instructed the jury to find according to the face of the note. The note was not due when the suit was tried. The action was brought to recover the possession of the note ; and the damage for nondelivery of the note, upon its being recovered, would be the value of the note. (Cortelyon v. Lansing, 2 Caine's Cases, 215, 216.) It would not follow that it was worth its face value. For in addition to its not being due for some time, the payee, Brightman, though honest, was regarded as in rather failing circumstances, and the lot, for which the note was given, had become reduced "in value, until it was not worth more than fifty dollars ; and it was shown that the best paper in the country was at a large discount.

The damages should have been assessed with reference to the value of the note in market, and not by its face.

We are of opinion that the Court erred in both of the charges, that have been referred to; and therefore the judgment is reversed and the cause remanded.

Reversed and remanded.