| Conn. | Jun 15, 1831
Lead Opinion
1. The defendants contend, that the acts of the warden and burgesses in relation to the clock, ought not to have been admitted to prove an acceptance of the clock. Upon what principle, it may be asked, can the objection taken be sustained for a moment? There surely is no process, by which the plaintiff could have compelled the borough of Bridgeport to pass a vote of acceptance. Whether they would do so or not, was with them entirely optional. The objection, then comes to this; that the defendants may use the clock forever, and yet, by neglecting to pass a vote accepting it, may avoid payment, during the same reasonable period. Can such an objection bo seriously insisted on? The defendants counsel seem to think otherwise; for they have here abandoned the ground taken in the court below, and now insist, that the evidence offered was inadmissible, inasmuch as it does not appear, that the wardens and burgesses were the authorized agents of the borough of Bridgeport. I am satisfied, that as this objection was not taken at the trial, it cannot be raised here. The rule of this Court prescribes, that in every motion for a new trial, the precise point made by the party, and the precise opinion expressed by the court, shall appear upon the face of the motion. 6 Conn. Rep. 327. Under this rule, no point not made in the court below, can be made here. But the rule and this construction of it are in the highest degree reasonable; and were a different practice to prevail, it is obvious, that the greatest injustice might be done; as the objection, if taken below, might have been satisfactorily met and obviated. A motion for a new trial does not profess to set forth the entire case, nor to detail all the evidence offered to the jury, but only so much of it as may be necessary to present fairly the questions raised and decided in the court below. Thus, m the motion now before us, it is stated, that the evidence objected to was offered “among other evidence.” What that “other evidence” was, we do not know, and cannot know. For aught that appears, it went directly to prove the authority of the warden and burgesses. At any rate, it is sufficient that the evidence was not objected to, on the ground of want of authority in them. I am, therefore, clearly of opinion, that on this ground a new trial ought not to be granted.
It is, however, said, that Davidson having indorsed these drafts, they thus became payment as to him; and therefore, he cannot resort to his original demand. There is no foundation for this position; and it is supported by no authority. A note or bill not received as payment, does not become such, by indorsement merely. Accordingly, it has been uniformly holden, that if the indorser resume the note or bill, the same being unpaid, he may resort to his original cause of action. And it has been conceded, in the argument of this case, that if Davidson had become lawfully repossessed of these drafts, they Slaving been dishonoured in the hands of his indorsee, he might have treated them as so much waste paper, and have recovered on the count for goods sold and delivered. The mere indorsement of these drafts, therefore, was no payment as to Davidson. But the general rule, undoubtedly, is, that the payee of an indorsed note or bill cannot recover on his original demand, so long as such note or bill is outstanding in the hands of a third person. And the reason is, not that the debt has been paid, but that a suit may afterwards be brought by the indorsee, and so the party may be compelled to pay the debt a second time. But when the reason of the rule ceases, the rule itself should cease. Where the defendant has actually paid nothing, and the plaintiff has received nothing for services rendered by the one, and the benefits of which have been enjoyed by the other, there is, prima facie, a meritorious cause of action ; and the plaintiff ought not to be turned round, because an unproductive note or bill has been given and indorsed, unless that course should be demanded, by a regard to the safety of the defendant. Thus, where an indorsed note has been destroyed, or is delivered up in court, or cancelled, or is so disposed of, as that it can never come against the parties to it, the objection to a recovery is done away, and
How do these principles apply to the case now under consideration? The suit is brought in the name of Davidson; but the motion find, that it is brought by, and for the benefit of, the executor of Tallman Perry. Is he, upon the facts found, entitled to have this action in Davidson's name? The motion states, not only that the drafts were negotiated, but also that all the right of Davidson to the sum due from the defendants, for the dock, was indorsed and delivered to Perry. He presented the drafts for acceptance, which was refused; and thereupon Perry’s executor, after his decease, brought this action, in Davidson’s name. Now, can there be a doubt, upon this statement, that an equitable right to the original cause of action passed from Davidson to Perry; and that he might maintain a suit upon it, in the name of the assignor? Does not the language of the motion imply, that the evidence of this debt, be it what it miglig was assigned and delivered over? Does the fact, that the drafts were also indorsed and delivered, vary the case? True, Perry could not sue on them, (they being indorsed) in the name of Davidson; nor could an action be maintained upon them against these defendants, in the name of any one, as they had never accepted the drafts. Still the defendants owed a debt, which they were bound to pay, to which Perry had an equitable title, and which could be sued only in Davidson’s name. Why should he not thus sue and recover?
The only objection is, that an action may hereafter be brought on the drafts; and that a recovery here will be no bar. But is it so? That no such action can be brought against these defendants, is very obvious, and for the reason that has been given. Suppose, then, that an action were to be brought, by the executor of Perry, against the drawers, the only persons liable; would not this verdict be evidence, and would not a recovery here be a bar? The drafts are counted upon, as well as the original cause of action, and a general verdict is taken. This recovery is had in favour of Perry’s executor, by whom the drafts are brought into court. Can he afterwards sue the drawers, and may not this judgment be interposed? Suppose there had been no assignment, no indorsement of the drafts, and the action had been brought by Davidson himself, for his own benefit; would not the same objection have lain to a recovery on the common counts, which is here
I would only remark, in conclusion, that these drafts were about four years over-due, at the time of trial; and now, one objection urged against a recovery, is, that no notice of their dishonour was ever given to the drawers; and they are here offered to be delivered up or cancelled. Under such circumstances, ought we to disturb a verdict, which is according to the justice of the case? I think not; and would not advise a new trial.
Concurrence Opinion
concurred as to the admission of the evidence offered by the plaintiff to prove an acceptance of the clock, by the defendants. The objection made at the trial, is the only one that can be considered here. On the other part of the case, he concurred in the opinion, that the mere giving of the drafts was not payment of the debt. But he had doubts whether the drafts were, at the trial, under the controul of Davidson, the plaintiff in the suit. This depends on the construction of the motion. It is only found, that “ the drafts were in court and unpaid.” As the executor of Perry prosecuted the suit in Davidsons name, and Davidson was not in court, he was inclined to think, that the drafts were to be considered as in the hands of such executor, and not under Davidson’s con-troul ; and consequently, that Davidson could not, under these circumstances, maintain a suit founded on the original indebtedness.
New trial not to be granted.