| Ill. | Apr 15, 1858
The first objection urged against this judgment, is the sustaining the plaintiff’s demurrer to the defendant’s plea to the fifth and sixth counts of the declaration. This plea traversed the allegations in these counts, that when the bill was drawn and at its maturity, defendant requested plaintiff not to present the same for acceptance and payment, and dispensed with and discharged the plaintiff from the presentment of the bill for acceptance and payment. The first plea filed, was a plea of nil debet to the'wliole declaration, which fully traversed every material allegation it contained. And this plea did no more than again traverse facts already traversed. According to the ancient rules of pleading, the defendant had a right to file such a plea as this, traversing any material allegation in the declaration, or he might plead the general issue. When he pursued the former course, it put the plaintiff upon the proof of the fact traversed, and failing to prove that fact, he failed in his action; and by pleading the general issue, he put the plaintiff to the proof of every material allegation, and failing in any one of them, he was defeated in a recovery. But we do not understand the defendant has the right to plead both pleas in the same action, and upon doing so, the court may strike such a plea from the files as unnecessarily incumbering the record. By having filed the general issue, everything could be attained under it that could be under both. And it was in the nature of, and in part amounted to the general issue, and was obnoxious to a special demurrer for that reason, as that plea had already been filed. There was no error in sustaining this demurrer.
A demurrer was sustained to the fourth and fifth pleas, filed December, 1854, on the ground that these pleas only amounted to the general issue. Whether they did or not is not material, if the facts alleged in them could have been given in evidence under the general issue already pleaded in this action. Unless the bill of exceptions showed that the evidence was offered on the trial and rejected by the court, the presumption would be that it had been admitted under the general issue.
The same may be said of each of the remaining pleas, to which demurrers were sustained. And as the bill of exceptions nowhere shows that the evidence which was admissible, as well under them as under the general issue, was rejected by the court, there was no error in sustaining the demurrers to these pleas, for which the judgment should be reversed.
It is insisted that the court erred in refusing to suppress the deposition of Coffin, because the notice was to take the deposition of J. Gardner Coffin, and the deposition taken purports to be that of J. G. Coffin, and because the commission is directed to Jasper E. Brady, and executed by J. E. Brady, when there was no evidence to identify the persons as being the same. We see that a commission -was issued to a person giving his full name, and was executed by a person of the same surname, and with the initial letters of his Christian name. This, it is believed, is sufficient to raise a presumption, that hardly admits of a doubt, that he is one and the same person, and in addition, he certifies that he acts' in pursuance of the commission which is annexed to the deposition, and he signs his name to the certificate as commissioner. This, avc think, is sufficiently certain, that the person to whom the commission was directed had executed it. He also certifies, that in pursuance to the commission he had taken the deposition of J. G. Coffin. In the commission he Avas commanded to take the deposition of J. Gardner Coffin, and we think the certificate renders it reasonably and sufficiently certain that he had examined the proper person. The same objections were taken to McVay’s deposition, and were properly overruled. We are also of the opinion, that there was no error in overruling the motion to suppress these depositions for the other reason assigned, and that they were properly permitted to be read in evidence on the trial, as the evidence was pertinent and material under the issue.
It is insisted that the court erred in admitting the letter of defendant, Avritten to Warrick Martin & Co., from New York, under date of the 8th of January, 1848, and mailed to their address at Pittsburgh, on the same day. The materiality of this letter under the issue, will depend upon whether a subsequent promise or agreement to pay by the drawer of a bill made to the drawee or holder, who had failed to present it for acceptance or payment, Avaives the right to insist that he is discharged from liability, on account of such failure to present. It is said by Chitty, in his treatise on Bills, that, “ The consequences, however, of a neglect to give notice of non-payment of a bill or note, or to protest a foreign bill," may be waived by the person entitled to take advantage of them. Thus, it has been decided, that a payment of a part, or a promise to pay the AAhole or part, or to see it paid, or an acknowledgment that it must be paid, or a promise that he will set the matter to rights, or a qualified promise, or a mere unaccepted offer of composition made by the person insisting on a want of notice, after he was aware of the laches, to the holder of a bill, amounts to a waiver of the consequence of the laches of the holder, and admits his right of action. Where there has not been an express waiver of notice of dishonor, facts implying a waiver must be left to the jury.” Page 501. In this letter there are expressions which clearly imply a promise to pay the bills held by the plaintiff, and it was, for that reason, proper evidence to go to the jury.
It is urged, that the court erred in admitting the affidavit of Cooper, because he was security for costs in the suit. It appears that this affidavit was read for the purpose of laying a foundation for an objection to the admission of the answer of Martin, the plaintiff of record, to a bill of discovery, filed by defendant. This evidence was, obviously, directed to the court and not to the jury, and notwithstanding it was read to the court, the answer of plaintiff was permitted to be read, and we are at a loss to see in what manner it could have prejudiced the defendant in the slightest degree.
It was also urged, that the court erred in permitting the plaintiff to read in evidence a bill of discovery, exhibited by defendant, against Frederick Kahl, one of the then plaintiffs, for the purpose of contradicting the answer of the plaintiff, Martin. On the argument, it was urged with a considerable degree of earnestness, that the defendant had no right to discovery from the plaintiff of record, who sues for the use of the equitable holder of a bill or note. And it was insisted, that as his admissions were not evidence against the holder, his answer to a bill of discovery, for the same reason, should be rejected. It is believed to be the law, that any admissions made by the holder, while he was the owner of the bill or note, are, as against a purchaser after maturity, admissible. And even if they were not, we see no reason why the defendant should be deprived of the evidence of the plaintiff, simply because he may have instituted suit for the use of some other person. When the equitable holder purchases a note or bill over due and dishonored, he takes it subject to all of its infirmities, and the law requires him to ascertain whether the maker or other person apparently liable, has any defense, and failing to do so, he acts at his peril, and must submit to any loss he has incurred for the want of care in purchasing. We think that all the reasons, why a plaintiff suing for the use of another, should be required to discover any matter of defense which existed before he parted with the instrument, apply with equal force as in the case of any other plaintiff. And it has been held by this court, that the party against whom an answer to a bill of discovery has been read, may contradict it by any legitimate evidence. The court says, “ It is true, that, after reading the answer to the jury, the appellants were not at liberty to discredit it, by impeaching the general reputation of the appellee for truth; for the reason, that a party is not permitted to show that his own witness is unworthy of belief; but he may always controvert the correctness of the statements made by his own witness, by the introduction of other evidence, and in that way discredit his testimony. An answer to a bill of discovery is entitled to no higher consideration than the answers of a party’s own witness upon the stand, and may be controverted in the same way.” Chambers et al. v. Warren, 13 Ill. R. 321.
There would seem to be greater reason to permit the beneficial plaintiff to contradict the answer of the nominal plaintiff, than to permit a defendant to do so, after having compelled the discovery, and if he were not permitted to do so, his position would be worse than that of the defendant or nominal plaintiff. And such a rule would be manifestly unjust.
The case of Chambers v. Warren is, we think, decisive of the question, and renders further discussion unnecessary.
The plaintiff asked for, and the court gave, these instructions, to which the defendant excepted :
1. That if the jury believe, from the evidence, that at the time the bills sued on were made, Curtiss agreed to waive or dispense with the presentment of said bills for acceptance and payment, the liability of said Curtiss on said bills was complete at their maturity, without presentment for acceptance or payment, or protest for non-acceptance or non-payment, or notice thereof to said Curtiss.
2. If the jury believe, from the evidence, that when said notes were made,. Curtiss deposited with Warrick Martin & Co., notes of the New Hope and Delaware Bridge Company equal in amount to said bills, and from the proceeds of which it was agreed by said parties, said bills would be paid, said Warrick Martin & Co. were not bound to call on the drawee of said bills for acceptance or payment, but might at once sue Curtiss on said bills when they fell due, if not then paid conformably to the understanding of the parties, out of the fund so provided.
3. That the payment by Curtiss, if proven, of any part of said bills after they fell due, is in law a waiver of presentment to the drawee for acceptance and payment, and notice for nonacceptance and non-payment.
4. That the counts in the plaintiff’s declaration, alleging due diligence in presenting said bills to the drawee for acceptance and payment, and protest thereof for non-acceptance and nonpayment, are sustained by proof of anything showing a sufficient excuse for the want of such diligence.
5. An acceptance by a creditor from his debtor of a less sum than is admitted by the debtor to be due, is not a satisfaction of the whole debt, and will not bar a suit by the creditor to recover the balance of the debt.
6. If Curtiss was indebted to Martin & Kahl in a sum exceeding five, thousand dollars, and if Martin & Kahl agreed to take twenty-five cents on the dollar of their debt in full satisfaction of the whole debt, and in pursuance of said agreement Curtiss paid twenty-five cents on the dollar of his debt to Martin & Kahl, these facts would not be a bar to a recovery, by Martin & Kahl, of the remainder of said debt.
7. A bill of exchange payable on a specified day, and not to be presented for acceptance till it is presented for payment,, and if in such case acceptance is waived, it dispenses with presentment for payment also, and the drawee is at once liable upon it, if not paid at maturity.
8. If the jury believe, from the evidence, that Warrick Martin & Co. received from said Curtiss, and held the notes of the New Hope and Delaware Bridge Company, as collateral security to the payment of the said bills of exchange sued on, the sale of said notes, or any part of them, to said Curtiss, by said Warrick Martin & Co., for twenty-five cents on the dollar, or any other price, would not discharge said bills of exchange, only to the amount actually paid by said Curtiss for said notes, upon such purchase.
9. The possession by Courtney & Harbaugh, of the bills sued on, are evidence of ownership in said Courtney & Harbaugh.
10. The fact that this suit is brought and prosecuted upon this record in the name of Martin, for the use of Courtney & Harbaugh, is evidence from which the jury may presume that said Courtney & Harbaugh are the real parties in interest.
11. If the jury shall be of opinion that the plaintiffs are entitled to recover, they shall find for said plaintiffs the amount of said bills of exchange still unpaid, as debt, and interest on that amount from the time it fell due, as damages.
12. If the defendant, Curtiss, did give to the plaintiffs the bills of exchange sued on in this case, and did deposit with the plaintiff $9,000 of notes of the New Hope and Delaware Bridge Company, with the agreement that plaintiffs should put said notes into circulation, so far as they could, and so far as said notes were put in circulation the same were to be credited upon the bills of exchange, and that Curtiss should pay the balance of said bills of exchange, and plaintiff did circulate the New Hope and Delaware Bridge Company notes, until said company failed, and had $5,580 of said notes on hand at that time, and Curtiss purchased the said notes of plaintiffs for twenty-five cents on the dollar, said notes being then held as collateral security for the payment of said bills of exchange, then the sale of said New Hope and Delaware notes to Curtiss would not discharge the liability of Curtiss on said bills of exchange, except as to the amount which plaintiff actually received from said New Hope and Delaware Bridge Company.
13. This suit being brought for the use of Springer Harbaugh and Wilshire S. Courtney, the presumption of the law is, that they are the real parties in interest in this suit.
14. Although the answer of Warrick Martin has been admitted in evidence, yet the jury are not bound to take it as absolutely true ; they are to give it just such weight as they believe it is entitled to, as a means of coming at the truth.
We will take occasion to say that it is a matter of regret that the records of courts should be incumbered by numerous instructions presenting the same proposition of law in the same terms, or so nearly so as to leave no difference in their meaning. We can see no benefit resulting from such a practice, and think it should be discouraged, and when asked, no more of them should be given by the court than embody the principle intended to be announced. The practice seems to be growing, and it can have no other tendency that we can perceive, than to confuse the jury, and induce them to suppose that the slight variance in the language implies a difference of principle. A number of the foregoing instructions are of this character, and should for that reason have been refused, though containing correct legal propositions.
In determining the question of whether these instructions were properly given, it will be necessary to ascertain what the law is, in regard to the rights and liability of parties to negotiable paper.
The docrine as laid down by Story on Bills, p. 438, sec. 371, seems to be the well-established law. He says, “ So, if there be an express agreement,- either verbal or in writing, between auy of the parties to the bill, to waive or dispense with the necessity of a due presentment of the bill at its maturity, that will, as between themselves, although not as to other parties, constitute a sufficient excuse for non-presentment thereof.” The first instruction announces this legal proposition, and it was a question for the jury to find, whether a presentment was waived by agreement of the parties, and there was evidence in the case that justified its being given.
The second instruction on the same principle was properly given. It told the jury that if the drawer had placed in the hands of the payee, at the time the bills were drawn, the amount of the bills in a particular kind of funds to be disposed of, with the agreement by the parties, that the proceeds of these funds should be applied to meet the bills when due, that such agreement would amount to a waiver of presentment, and that the payee might sue the drawer at maturity, if they were then not paid according to the agreement. The evidence all tends to show that presentment was dispensed with, and that notice was not required. The drawer wrote across the face of the bills “ waiving acceptance,” and that he had placed in the hands of the payees, funds to be converted to meet these bills, all of which showed an intention and agreement to waive a presentment and notice.
The jury are told by the third of these instructions, that if they believe, from the evidence, that defendant paid any part of these bills after they fell due, it would be a waiver of presentment for acceptance- and payment. This we have already seen is the law, and there was evidence in the case which justified its being given. The evidence showed a subsequent payment, and it was for the jury to determine of what character it was.
The fourth instruction was properly given, as the decisions settle, that evidence which shows an excuse for not using diligence, supports the averment of diligence. Taunton Bank v. Richardson, 5 Pick. R. 436; Baker v. Parker, 6 Pick. R. 80.
The fifth instruction presents the question, whether the acceptance of a smaller amount than that which is due as a payment in full, is binding on the creditor. On this question the decisions, which are numerous and uniform, hold that it is not. They proceed upon the ground that there is no new consideration to support the agreement. It is said that a payment of a part of a debt, or of- liquidated damages, is no satisfaction of the whole debt, even when the creditor agrees to receive a part for the whole, and gives a receipt for the whole demand, and a plea of payment of a smaller sum in satisfaction of a larger, is bad, even after verdict. 2 Pars. Contracts, 130 ; and the numerous authorities cited support this doctrine. But if the smaller sum be taken by way of compromise of a controverted claim, or from a debtor in failing circumstances, in full discharge of the debt, no reason is perceived why it should not be binding on the parties. This instruction was properly given, as it only presents this principle of law.
The ninth instruction was properly given, as the principle, that the holder of a note, when there are no .circumstances of suspicion of mala fides, is presumed to be the legal holder and owner. This principle is too familiar to require discussion or authority.
The other eight instructions asked by and given for the plaintiff, except the fourteenth, (the principle upon which it was properly given has already been discussed,) only present the same questions involved in the six, already considered, and it is deemed unnecessary to notice them further.
The instructions asked by the defendant, and which the court refused to give, only present the reverse of the instructions given for the plaintiff, and the discussion of those disposes of these; and they were, consequently, properly refused.
Upon the whole record, we are unable to perceive any error, for which this judgment should be reversed.
Judgment affirmed.