6 Whart. 220 | Pa. | 1841
The opinion of the court was delivered by
This was an action of assumpsit on a promissory note, drawn by the defendant, Depeau, in favour of Robinson & Smith, or order, and by them endorsed to the plaintiff. The plaintiffs 'lent Robinson & Smith fifteen hundred dollars on a note; and as a collateral security, the latter firm placed in the hands of the former a bond for twenty-three or twenty-four hundred dollars, of a certain Edward Miller to Thomas S. Smith, one of the partners of Robinson & Smith. Sometime after, Robinson called on the plaintiffs, and stated that he wanted to take the bond away, and to get it discounted. Robinson & Smith, a week or so after the delivery of the bond, paid to Ogden & Co. eight hundred dollars, and transferred the note in suit to them as collateral security, for the amount yet remaining due. The plaintiffs gave up their claim upon the bond for the note, and the eight hundred dollars. It seems that the note of Robinson & Smith to the plaintiffs was protested; that one of that firm came to the plaintiffs, and stated that if they would lend him the bond for a day, he had an opportunity of getting the money upon it, and would then pay the fifteen hundred dollars. The bond was delivered to him for that purpose; but the bond was neither redelivered to the plaintiffs, nor was the amount due on the note paid according to the understanding between them; but sometime afterwards—how soon is not recollected, nor is it material—eight hundred dollars in cash were paid, and the note in suit was transferred to the plaintiffs, in lieu of the bond, and as a collateral security for the note. It may be inferred from the evidence, although no direct proof is given of it, that the bond was assigned for a valuable consideration, or paid by the obligor: that the money was received by Smith, one of the obligees; and that eight hundred dollars were paid of the proceeds.
The defendant alleges that there was no consideration for the note in suit; that the transfer of it jEo the plaintiffs was in fraud of his rights; that it was placed in the hands of the plaintiffs as collateral security, and that consequently there is the same equity existing as between the maker and payee. The plaintiffs admit that there was no consideration between the original parties; that the payee.could not recover, and that if pledged as a collateral security, without more, for a pre-existing debt, they would be in no better situation than the first holder; but they contend that there was an exchange of securities in substitution of the note for the bond, or the proceeds of the bond, and that they were innocent holders for value.
Several exceptions have been taken to the charge of the court, none of which have been sustained. The charge is clear and precise, and substantially answers all the points which were made, and is as favourable to the defendant as he had any right to expect. The court leave the facts to the jury, and if there be any error, it is the application of the evidence to the points ruled. Li the investigation of the case it becomes material to ascertain what are the facts found by the jury, and to which their attention was directed by the court. They are in substance, these. That placing the bond in the hands of Robinson & Smith, who acted as the agent of the plaintiffs, was for a particular and special purpose, viz., that they would immediately dispose of the bond; which they did; and that they would pay over a portion of the money to them; and that in the meanwhile, the proceeds would be held by them as a pledge or security for the amount due on the note ; that the money raised by the sale
The plaintiffs in error contend, that the judge erred, 1st, in charging the jury, that a parting with the possession of the bond, for the purpose of a sale of it, was no surrender of the property in it; and that the parting with the possession did not imply that the plaintiffs gave up their claim to it. Coupled with the evidence, we see no error in the charge; as it was the understanding of the parties, and the jury have so found, that it should be used for the special purpose of converting the bond into money, and paying the plaintiff’s debt. Quoad this amount they were the agents of the plaintiffs.
2d. In charging that if the defendant slept upon the knowledge that the plaintiffs held the note, and did not immediately give them notice that no value had been received for it, it was a circumstance for the consideration of the jury, in reference to his liability. The answer refers to the plaintiff’s ninth point; and it may be doubtfid whether, if there be error at all, it is not against the plaintiffs. It is conceded, that the plaintiffs were not aware of the want of consideration between the original parties; at least there is no proof of it: that they were resting under the conviction that there was no want of faith between them: that there was at least a moral obligation on the defendant, as soon as he was informed of the true state of the case, to take the earliest opportunity to apprise them of it, that they might secure themselves: .but instead of this, he seems
But it is said that there is error, because the judge did not answer the defendant’s points at all: and that he misdirected the jury as to the law arising from the evidence. That the latter allegation is groundless, I have endeavoured to show; and as to the former, all the points to which the defendant was entitled to an affirmative answer, are noticed in the charge. But in addition, this case is in some respects peculiar; and we sincerely hope it will be the last of its kind. When the judge was about to deliver his charge to the jury, the defendant’s counsel handed to him a paper, containing five points to be charged on. The judge supposed that the general charge had covered all the ground taken in the argument; and from the opportunity afforded of examining the points, he was not aware that any thing in them had not been sufficiently noticed, tie desired, however, if the counsel for the defendant wished any more specific answer, that a designation would be made of the portions of the points which had not been embraced in the remarks already submit'ted to the jury.
The counsel for the defendants then referred to the fourth and fifth points. To this he answered, that no difference had been shown between the law of New York and the law of Pennsylvania; and therefore the point did not arise. In this the court was right; for no difference now exists in the law of the two states in this particular. The courts of New York have retraced their steps; and the law is the same there as here.
As to the fourth point, the judge said, that it appeared to be complicated of law and fact; and believing it to be answered by the general charge, so far as the defendant was entitled to have it answered, he had no further reply to give to it. The remarks already made show that the point was substantially answered; but there is another reason equally conclusive.
After stating his impression, that the point (certainly not so clearly expressed as to be understood in a minute) had been answered, the judge requested the counsel for the defendant to specify as to what particular the fourth point had not been answered; and the counsel not presenting any such specification, no further response was made by the court. To convict a judge of error, after evincing his desire in this manner to do justice to the parties, might lead to the practice of trick and artifice and concealment, and must be specially avoided; or otherwise the trial by jury would be a common nuisance. It is not intended to intimate that there was not duo fidelity to the court in this case; but we must presume that the counsel knew in what particular the judge failed or omitted to answer; and in common candor it was their duty, being appealed to, to point it out. If they choose not to do so, for motives best known to themselves, it is an
As to the question of the onus, which has been so much discussed in the argument, it was a proper subject of remark before the jury; and is pnly material here, as bearing, upon the facts found by the jury-
Judgment affirmed.