167 Pa. 429 | Pa. | 1895
Opinion by
We think it very clear that in whatever way the plaintiffs’ claim may be regarded, it is founded upon a verbal assumption
It is perfectly manifest that the only ownership of the notes which could ever accrue to Bash would be by virtue of his discounting them, that is lending the money on them. If Weinmann & Co. paid the notes at maturity Bash would have no further interest in them, and no interest at any time except as a lender of money. The principal obligation involved under the agreement was the obligation of Weinmann & Co., as makers of promissory notes, and that obligation was to continue until the maturity of the notes. It would not be in the least degree extinguished, or changed, or diminished, on account of the defendant having advanced the money for such a note. Both the original statement of cause of action and the amended statement describe the defendant’s undertaking as an agreement to “ discount said notes for plaintiff without recourse.”
The plaintiff Dougherty being on the witness stand was asked, “ Q. What did you do with the note in connection with the note that Mr. Bash had? A. We sent word to Mr. Bash that we had secured Weinmann & Co.’s note as directed by him and we were ready to have him discount it. He sent us word, he sent us a postal card, I think, that he would call.” Speaking of his interview with Bash on October 9, 1891, in reference
In speaking of that note he said Bash “ guaranteed the payment of the note.” The plaintiffs’ bookkeeper, Miss Campbell, spoke in the same language in describing the same conversation. In most of the conversations with Bash, as stated by Dougherty, he said that Bash said he should bring the notes to him, Bash, and he would take them. It matters but little what the precise words used were ; it is very evident that so far as Bash’s undertaking was concerned he was to furnish-the money for the notes, to the plaintiffs, and to hold the notes without 'recourse to the plaintiffs. The important feature of the transaction was that Bash did not promise to pay for the goods which the plaintiffs sold to Weinmann & Co., but only to furnish the money for such notes of Weinmann & Co. as were brought to him by the plaintiffs. This simplifies the matter very much and eliminates many of the decided eases from consideration.
We have also been unable to discover any evidence on the record showing that the original indebtedness of Weinmann & Co., to Dougherty & Co., for the goods sold, was extinguished or surrendered. The mere taking of the debtor’s note by a creditor for a debt contracted for goods sold, does not extinguish the debt unless it was specially agreed that the note should be taken as payment of the debt: Kemmerer’s Appeal, 102 Pa 558. This is well illustrated in the law of mechanics’ liens where it is held that the acceptance of the debtor’s note for the materials furnished does not extinguish the lien, which may be enforced notwithstanding the note : Jones v. Shawhan, 4 W. & S. 257.
Without any such evidence in this ease therefore, it is evident that Dougherty & Co., after taking the note of Weinmann & Co., still retained their right to collect the debt for the goods sold and delivered to Weinmann & Co.
It appears, therefore, that the original debt against Weinmann & Co. survived after the giving of the note, and its extinction was no part of the agreement between the plaintiffs and the defendant, or between the plaintiff’s and Weinmann & Co.
If we try the present case by the standard set out in the foregoing citation, it seems to be conclusive. As we have seen, the original debt of Weinmann & Co. was not to be extinguished by the arrangement as testified to by Dougherty. Nor was there to be any liability of Bash except that which was contained in his promise. No fund or property was to be placed in his hands as against his liability,nor did his promise relate to any personal interest or property of his own. The affirmative testimony of the plaintiffs exhibits the absence of the exceptional circumstances which might take the case out of the statute. The debt to be paid was a debt of Weinmann & Co., who were third persons as to Bash. That it was to be done by advancing money on, or paying their notes, does not alter the fact that it was their debt that was to be paid. Nor do the facts warrant any inference that the transaction was to be a mere purchase of securities. The whole arrangement was to be for future purchases of goods by Weinmann & Co., from Dougherty & Co., to be paid for as far as possible by Weinmann & Co., each month, and the giving of Weinmann & Co.’s notes for the unpaid balance. These notes the defendant was to discount, or advance money upon them, or to pay, as between the defendant and Dougherty & Co. In real truth it was a mere discount, because the obligation of Weinmann & Co. to pay the notes at maturity continued, and if they paid them when due, they thereby extinguished what was still their own debt, and the defendant would be reimbursed for his advance.
The case of Mallet v. Bateman, L. R. 1 C. P. 163, comes nearer to this in its facts than any other we have met with, in fact it is entirely similar in its leading features. The plaintiff sold iron buckles or fasteners for bridge floors to Calvert & Co. at the instance of the defendant who was an iron broker, and Calvert & Co. were to pay cash for the goods at each delivery. Calvert & Co. became slow in their payments, and the plaintiff
The learned counsel for the plaintiffs claims that this decision is in conflict with our own cases of Arnold v. Stedman, 45 Pa. 186; Taylor v. Preston, 79 Pa. 486, and Townsend v. Long, 77 Pa. 143, but an examination of those cases fails to disclose any hostility to Mallet v. Bateman, but shows that
Arnold v. Stedman was decided upon the express ground that Arnold’s verbal promise was to pay a debt which was a mechanic’s lien upon his own property, and in which he was interested to have the proceedings on the lien suspended. In Taylor v. Preston the promise was by the assignee of a vendee under articles to pay unpaid purchase money named in the articles, and we held that the promisor was bound to pay it because it was his own debt. So also in Townsend v. Long the promisor bought out an entire partnership stock and agreed to pay as part consideration of the purchase all the debts of the firm, one of which was due to a former partner who had sold his interest to the other members for $700, and this debt was also specially named in the transfer. We held the promisor liable on this promise because it was his own debt which he had agreed to pay in consideration of the property sold to him. We made the same ruling in Wynn v. Wood, 97 Pa. 216.
We have not been referred to any case, nor have we met with any, in which a transaction like the present has been held to be clear of the statute. We are of opinion that the promise of the defendant Bash was in reality a promise to pay the debt of another without any acquisition of property as a consideration therefor, and without the presence of any of the exceptional circumstances which prevent the application of the statute. Being only a verbal promise it is void under the statute.
Judgment affirmed.