82 Va. 801 | Va. | 1887
delivered the opinion of the court.
The only question we deem it necessary to consider in this case is, whether the estate of John P. Kelly, deceased, owes upon the judgment confessed in his lifetime, to the Merchants National Bank, of Baltimore, Maryland, the sum of $5,017.01, fixed by the decree complained of, or one-half of that sum, that being the amount reported by the commissioner as due, or nothing at all, as the appellant contends. And this is purely a question of fact which depends upon two other questions of fact: first, what was the agreement between the firm of Kelly, Tackett & Ford and the bank which brought about the confession of judgment by the said John P. Kelly; and, second, whether a certain debt due from A. D. Kelly & Co., of New Orleans, to Kelly, Tackett & Ford was ever transferred to the said bank.
It is argued for the appellant that upon the failure of the firm of Kelly, Tackett & Ford, an arrangement was entered into between the bank, the said firm, and John P. Kelly and Thoroughgood Taylor, the endorsers of said firm, the result of which was that Kelly, Tackett & Ford were to draw their three negotiable notes, payable to the Merchants National Bank of Baltimorefor$6,333.33-J-each, dated April 2,1869, and payable respectively in three, four and five years, interest to be paid semiannually, until the maturity of the notes, by the drawers, and that these notes were to be endorsed by the said John P. Kelly and Thoroughgood Taylor, and delivered to the said bank, and that as collateral security for these notes the said Kelly and Taylor were to confess each a judgment for $19,000; which judgments were to stand as security for the notes, but not to be enforced until the maturity of the notes and default made in their payment. That as further collateral security, the said firm assigned to the bank certain notes of G. B. Stacy & Son,
But this contention cannot be sustained; for while it appears from the record that in April, 1869, the firm of Kelly, Tackett & Ford being then indebted in the sum of $19,000, for which John P. Kelly and Thoroughgood Taylor were already bound as endorsers, did execute to the bank their three notes for the sum of $6,333.33-?.- each, and gave as endorsers upon the said notes the said John P. Kelly and Thoroughgood Taylor, and obtained from the said John P. Kelly a confession of judgment in favor of the bank for that amount.
It also very clearly appears that this was really the contract of Kelly, Tackett & Ford with the bank, and that while any surplus that might be in the hands of the bank after the payment of the judgments, which, by the terms of the agreement, Kelly, Tackett & Ford were to procure from both John P.
The bank was entitled, under the agreement, to a confession of judgment from both Taylor and Kelly, which was to be procured by Kelly, Tackett & Ford, and a failure on the part of this firm to obtain a confession from Taylor cannot operate in any way to invalidate or affect the judgment confessed by Kelly. He confessed that judgment, doubtless, relying upon the understanding derived from Kelly, Tackett & Ford that they would procure a like confession from Taylor, but the failure of this firm to do so cannot affect the bank.
The subsequent promise of the bank to bring suit against Taylor was nudum pactum, and certainly could not impose upon the bank an obligation to do an impossible thing, namely, to compel Thoroughgood Taylor to confess a judgment, nor upon a failure to sue, to deprive it of rights fairly acquired by the confession of judgment of John P. Kelly.
Upon the second point, it seems very clear, from the evidence in the record, that the debt due by A. D. Kelly & Co., although it was at one time contemplated that it should be done so, was never transferred to the bank, but that it was collected by the firm of Lea, Finney & Miller, attorneys for Kelly, Tackett & Ford, in the city of New Orleans, and by them disposed of under the orders and for the benefit of Kelly, Tackett & Ford.
Decree affirmed.
