Hill v. Huntress

43 N.H. 480 | N.H. | 1862

Bell, C. J.

The note in question has the form and requisites of a negotiable promissory note. If it had been indorsed before it was due, for a valuable consideration, without notice of any agreement between the original parties respecting it, it might have been collected as a cash note, and it would not have been subject to any defense which might have affected the oi’iginal holder. The whole note was by its terms payable in four years. It was more than twelve years old when it was indorsed. It was long overdue and discredited, and was therefore subject in the hands of the indorsee to every equity by which it was affected in the hands of the original party, and it was open to any defense which the promisor had a right to make against the payee. Odiorne v. Howard, 10 N. H. 343; Hale v. Boardman, 14 N. H. 41; Ordiorne v. Woodman, 39 N. H. 543.

As between the original parties, notwithstanding its form, this instrument is but one part of a special contract, the other part of which, as it was made, was contained in the written agreement of the same date, and purporting to be executed at the same time. Different instruments are to be construed together, as parts of the same contract, 'where it is necessary to carry into effect the agreement and intention of the parties. Odiorne v. Sargent, 6 N. H. 401. In that case a note was signed by the defendant to the payee or order, and on the same paper an agreement was written, signed by the payee, agreeing to take his pay in hauling if done in six months. No hauling having been done or offered within that time, the note was then indorsed, and an action brought on it by the indorsee, and it was held that, the six months having expired without payment, the agreement had become inoperative; and after that time the instruments were no longer to be construed together, and the note might be negotiated, and a suit maintained by the indorsee. It is evident that if the conditional clause of the agreement had been omitted, the writings must have been construed together as parts of a special agreement, and so is the expressed opinion of the court.

In the present case there is no such condition. The payee agrees to furnish hides and skins to the promisors in the note as fast as they need them to tan, to such an amount that the proceeds, after deducting cost, &c., shall pay the note and interest; “it being the intention to pay said note in tanning,” &c.

Taking the two instruments together, the agreement is, that the promisors shall pay $2,173.70 in tanning hides, to be furnished by the payee as fast as the promisors need them, to such amount that, after deducting the cost, the proceeds may pay the note and interest. The promisors have tanned all the hides furnished them. The effort now is to compel them to pay the balance of the note in money. The right of .the indorsee is no greater than that of the payee, if he has any right whatever. The case may be considered then, as if the action was brought by Hill in his own name, and he had declared upon the whole contract, as it was made, as a special agreement. In such case he must allege that he has performed the condition precedent of furnishing the hides. This the case shows he has not done. He must show that the defendant has failed to perform some of the things which he had stipulated to do; and this he could not do without performing his own precedent engagements. He admits he has not furnished the hides, except in part, because hides were so high in price and leather was so low that the business was unprofitable. The payee could not recover, then, upon a declaration on the note, no'r upon a declaration upon the special agreement contained in the note and written contract.

To maintain any action, he must declare upon the special agreement contained in the writings and in the parol agreements by which they have been subsequently modified. And if he can show a failure on the part of the defendant to perform his agreement as thus modified, he will be entitled to recover his damages. But if the original contract has been modified from year to year for successive years, in the manner stated by the case, its entire character has been changed; the note is no longer the existing contract of the parties, but the contract is in great part a parol agreement respecting these writings. Such an agreement is not negotiable; and the present plaintiff* took nothing by the indorsement but an equitable right to maintain an action in the name of the original party, if he can show a breach, on the part of the defendant, of the agreement comprised in these writings and all the verbal agreements since made.

It appears that immediately after the contract was entered into, it was modified by an agreement of Hill and Huntress, by which Hill was to furnish, when requested, oil, tallow, bark, and cash for tanning purposes, to be deducted, like the cost of the hides, from the proceeds of the leather tanned. This must almost unavoidably defer the payment of the note, but such delay by mutual consent would constitute no breach of the contract. At various times notes and claims of Hill against Gowen and Huntress, or Huntress alone, were allowed and paid out of the proceeds of the tanning. This, too, was done by mutual consent; and, though it delayed the payment of the debt and the fulfillment of the contract, it was not a breach of it. It was merely a waiver, to that extent, of the original and modified contract. During some of the years since the date of the contract, no hides were furnished, because the prices were such that no profit could be realized from the business. This, it must be taken from the case, was also done by consent, and necessarily postponed the completion of the contract; but it was not a breach. So the whole amount of hides needed by the defendant seems not to have been furnished in any year; but no breach can be claimed on this account, since the parties have acquiesced and have continued to treat the contract as existing and unbroken.

None of these modifications affect the point of the kind of payment to be made. The debt was originally payable in tanning of hides, to be furnished by Hill. No agreement has been made to change this mode of payment, and it is still payable in tanning, and not in money. The changes of the agreement being assumed to be made by consent, the contract has not been violated, and the monejr can not be recovered as damages. The stipulations as to time having been waived, the contract remains as it would have been if no time had been originally agreed upon. The payee’s contract would be to furnish the hides in a reasonable time, and the defendant’s to do the tanning in a reasonable time, the defendant being bound to indicate his needs, and to call for the hides, and the payee having a right to tender the hides and other materials as fast as the nature of the defendant’s establishment would reasonably admit of his tanning them.

The action, then, if brought by or in the name of Hill, is prematurely brought before a breach has occurred, and before the party has gained a right to recover any damages, and there must consequently be

Judgment for the defendant.