10 Ga. 560 | Ga. | 1851
By the Court.
delivering the opinion.
“ For value received, I promise to pay to Gideon Hotchkiss, five hundred dollars in castings, at Hopkins & Hardeman’s foundry in Augusta — said Hotchkiss’ present account to go in part payment. (Signed,) THOMAS HOPKINS.
The castings to be taken at 6 cts. per lb.”
On this instrument was indorsed a credit of $256 99 cts. the body of which credit was admitted by the defendant to be the handwriting of his testator. It was proven on the part of the plaintiff, at the trial, that the balance on Hopkins & Hardeman’s books against plaintiff, was $256 99 cts. some time between April 24th, and June 3d, 1845; the credit on the instrument bearing date in May, 1845.
The case being submitted to the Jury upon the written contract and credit thereon, with the proofs as hereinbefore stated, the defendant offering no evidence, the plaintiff requested the Court to charge the Jury, among other things, 1st. That a special demand previous to bringing the action, was not necessary. 2d. That proof of an accounting between the parties and a bona fide payment, was evidence of a demand.
The Court refused to give the charge as requested ; but on
The plaintiff farther asked the' Court to charge, that the form of pleading prescribed by the Act of 1847, applied to the case at bar; and that under that Act, it was only necessary to allege indebtedness and prove it. The Court refused to charge either affirmatively or negatively. The verdict of the Jury was a general finding for the defendant.
Upon these several charges and refusals to charge, the plaintiff applied to the Circuit Judge for, and obtained a certiorari; upon the hearing of which, the Judge of the Court of Common Pleas was sustained; and to reverse this decision of Judge Starnes, this writ of error is prosecuted."
The opinion of the Judge of the Superior Court, which accompanies this record, is a most elaborate one — discussing at large, both the law and the facts, upon general principles, and upon the authorities, as well as in reference to the particular questions which are involved. And the argument before this Court has been conducted in a manner to satisfy us, that with our learned young brothers, the law is a labor of love, a congenial employment, and that they find themselves perfectly at home in its tangled mazes.
Was a special demand necessary to be proven previous to bringing the action on this instrument ?
The answer to this question will depend upon the construction which we give to this contract. Was the liability of the debtor to pay directly and generally in money ? or to deliver specific articles to a certain amount, to wit: five hundred dollars worth, and at a stipulated price, when called for ?
In our judgment, the understanding was, to supply castings, at such times and of such description as suited the creditor, and that failing to deliver these articles when demanded, within a reasonable time after the agreement, that then, and not before, the promisor became responsible for the money. In other words, that the liability was not direct and primary, but collateral and secondary. And this, we have no doubt, is the sense in
The place of performance is expressed, but the time left open. This gives the payee the election as to time. And the well settled rule is, that a special request must be shown at the place designated. It is different where the contract of delivery is specific as to time ; there the promiser must move first.
If this interpretation of the instrument be not correct, why was the time for delivery omitted ? . If it was intended that the time for delivery should be instanter, or within as short a time after as it could be done, why did the - contract not contain a definite stipulation to that effect ? The conviction is irresistible that it was left open designedly. Nor is it imposing any unreasonable burden on the promisee, to require him to notify the promiser at what time it will suit his convenience or business, to receive the whole, or any portion of the castings which were to be furnished. This is not only a common sense exposition of this transaction, but it is in conformity with the usage of business men who enter into engagements of this character.
The law is thus summed up by Mr. Chipman in his Essay on Contracts, 28, 29: “ If,” says he, “ a merchant give a due-bill to A, payable in goods, and no time or place of payment be designated, the due-bill contains an acknowledgement that A has paid him in advance for the amount of goods therein expressed; and a promise is implied on the part of the merchant, that whenever A shall call at his store and present the due-bill, he will deliver to him such articles as he shall select, out of the goods on hand. The store of the merchant is the place of payment, and no action can be maintained on the due-bill, until A shall call at the store of the merchant for the goods, and the merchant shall refuse to deliver such goods as A shall select.”
And in the well-known and much litigated case of Wilneshurst vs. Brooker, (7. M. & Gr. 882,) it was held by the English Court of Common Pleas, that “ when goods are sold and nothing is said about the time of delivery, the seller is bound to deliver them whenever they are demanded.” And this principle was
And in King vs. Wilson, (6 Beavans’ R. 124,) the Court say, “ that although time was not originally made by the parties of the essence of the contract, yet it may become so by notice, if the other party is afterwards guilty of improper delays in completing it.”
Our conclusion then is, that where the contract is not to pay money in goods, or in the alternative, money or goods, but to deliver specific articles to a stipulated amount, and at a price agreed on, and no time is fixed by the contract for the delivery of the property, there must be a demand made or notice given, and a failure to comply on the part of the payor, before he can be held answerable in money. And notwithstanding the apparent conflict of authority in the different States upon this point, I am satisfied that a careful examination of the adjudicated cases will show, that not a single reported case can be found to contradict this_ doctrine. It is true that dido, may be adduced to the contrary, as in the case of Roberts vs. Beatly, 2 Penn. R. 63. But in these, although the agreement was to deliver property at a specified time and place, Mr. Huston, Justice, was not certain but that a previous demand was necessary.
But it is insisted that the credit indorsed upon this instrument, is evidence of demand, after which the balance is due immediately in money. It is conceded that part payment, a promise to pay, or an acknowledgement of liability by an indorser, is, prima facie evidence not only of notice, but of presentment also. But what are the facts here ? Hotchkiss’ existing indebtedness by book account to Hopkins, wTas to be received in part payment of the contract. The amonnt was $256 99 cts. the precise sum credited upon the instrument. How, I ask, does this create any presumption that the balance of $263 01 was demanded in castings ?
We apprehend the presiding Judge was right in refusing to submit a point of pleading to the Jury. It was an issue of law, determinable only by the Court. We have held, that under the Act of 1847, “ to simplify and curtail pleadings at law,” the declaration will be sufficient, if it pursues the form prescribed by the Statute, and that no additional averments are necessary to let in the proof necessary to a recovery. Cameron vs. Moore, decided at Decatur, 1851. Consequently, as strange and anomalous as it may seem, the plaintiff in this case, underthe allegation that the defendant’s testator was indebted to him so much on a written promise, accompanied by a copy of the instrument, would be entitled to prove a special demand, notwithstanding he had omitted to aver it. True, this is a wide departure from the well established and time honored practice of the Common Law, still it is the indisputable right of the Legislature to regulate and control the matter. In our zeal to dispense with shadows in legal proceedings, we should be careful to retain the substance ; otherwise, the most injurious consequences may result to the rights of parties.
What is evidence ? It is the means by which any fact which is put in issue, is established or disproved. The matter submitted for investigation here was, whether a demand had been made by the promissee upon the promissor for a compliance with this contract. . Did the proof offered, go to ascertain this fact ? We have already said, that it did not. It was, therefore, irrelevant and properly withdrawn from the consideration of the Jury.
Upon the w'hole, we are satisfied that the judgment of the Circuit Court, affirming that of the Court of Common Pleas for the City of Augusta, is legal, upon the grounds which have been argued against it, and should be affirmed.