28 N.H. 561 | Superior Court of New Hampshire | 1854
Several questions are presented by the facts found by the auditor’s report, and submitted :
The defendant having, from tbe surplus of the mortgaged property, from the Allen and Deming notes, and from the sale of the equity of redemption, by means of an action and a judgment, instituted by an agreement of the parties for the express purpose, received into his hands money, which he agreed, when received, to apply to the payment of these debts, the question arises, upon his omission to pay them under the circumstances of this case, whether the plaintiff can recover the money in the present form of action.
On this head, it is a fixed principle of law that the merits
But if one gives his note for a sum of money, the consideration of which is that the payee shall do a certain thing, the latter is surely not absolved, by bringing an action and recovering a judgment upon the note, from performing the act, the undertaking of which formed the consideration of the note. His refusal would lay the foundation of an action upon the contract.
If one, having received money in payment of his undertaking to perform an act, refuse to perform it, the other-party has the right to treat such refusal, or any degree of neglect that shall be equivalent to a refusal, as a rescission of the contract, and bring his action to recover back the price he has paid. This proposition is fairly involved in the decision of the case of Snow v. Prescott, 12 N. H. Rep. 535, which was an action to recover the price of chattels which had been delivered by the plaintiff to the defendant, and which the defendant had agreed to indorse on a note which he had held against the plaintiff, but which he did not indorse. It was held, in derogation of the earlier case of Tilton v. Gordon, that he might recover, notwithstanding the defendant had previously brought his action on the note, in which he recovered for the whole sum.
The defendant here promised the plaintiff to pay certain debts which the latter owed, and cannot deny that he was paid by the plaintiff for so doing. Instead of performing his promise, he has broken it. The plaintiff, instead of seeking redress in a special action on the case, on the promise, chooses to treat the contract as rescinded, and to recover back what he has paid.
We, therefore, think the action well founded, as respects this item in the plaintiff’s claim.
If any innocent party had been misled by the receipt, and induced to give credit to any one by reason of it, there might indeed be some ground for denying to the plaintiff the privilege of showing that it was a sham, and an admission against the truth. But if any one has been so deceived, it is not he who now seeks to take advantage of the admission. It was made at his suggestion, for a purpose entirely foreign to the one for which he seeks to use it, and against what he perfectly well knew to be the truth at the time.
Where gifts or conveyances are made for fraudulent or other illicit purposes, the law will not generally disturb the party in possession; and courts do not lend their aid to enforce agreements against the principles or the policy of law, or having injustice or fraud for their object. But the receipt in question is evidence neither of a gift for an unlawful purpose, nor of an unlawful agreement. The plaintiff is seeking neither to avoid such a gift nor to enforce such a contract, by averring and proving the truth to be contrary to his written admission. The money came into the defendant’s hands for a purpose entirely lawful and proper. The receipt is exhibited as evidence that it has been fully.accounted for. The plaintiff seeks merely to show that the paper is not conclusive on that head, because it was executed and given for another purpose; for an object in which the two parties participated, and whether lawful or not, is a question which in no way applies to the real matter of inquiry.
This raises a question of some practical importance, whether the omission of the initial letter between the Christian and surname is a variance. The authorities on the subject are traced to the time of Lord Coke, who lays it down that one can have but one Christian name, and that he may, at his discretion, use the one which he received in baptism or at confirmation. But this rule, to conform with subsequent authorities, must be taken with a modification, and the one name may be made up of a plurality of names. As in Arbounin v. Willoughby, 1 Marshall 477, where the defendant was sued by the name of William, his whole name being Hans William, Lord Chief Justice Gibb observed, in effect, that the omission was material, and made the rule absolute to set aside the proceedings on that ground. Also in Commonwealth v. Hall, 3 Pick. 263, Morton, J. “ The roll of "White’s company contained the name of Charles Hall, but not the name of Charles Jones Hall. Charles Jones is the respondent’s name. It needs no argument to prove that Charles and Charles Jones are different names. In the case of Hutchins v. Gibbie, 2 Chit. 335, where the plaintiff’s name was stated, in the commencement of the declaration, to be James Toll Hutchins, and the defendant demurred specially that he was named in the sequel as (t said James,” it was held sufficient; because non constat that Toll was not part of the surname. These cases pro
But there is another class of cases in which between the Christian and surname there were interposed one or more initial letters, and it did not appear what those letters stood for, if for any thing.
In Keene v. Meade, 3 Pet. S. C. Rep. 1, a commission had been issued and depositions taken under it. In the commission the name of the original plaintiff was written Richard M. Mead, which in fact was Richard W. Meade, and was so in the return of the commission. The reading of the commission was opposed on account of the variance.
Mr. Justice Thompson, in delivering the opinion of the court, observes, “ It may well be questioned whether the middle letter formed any part of the Christian name of Meade. It is said the law knows only one Christian name, and there are adjudged cases strongly countenancing, if not fully establishing that the entire omission of the middle letter, is not a misnomer or variance ; and, if so, the middle letter is immaterial, and a wrong letter may be struck out or disregarded.”
In Franklin & a. v. Talmadge, 5 Johns. 84, a deed was, on trial, offered in evidence conveying the locus in quo to Abraham Franklin, Samuel Franklin, and William T. Robinson. The defendant’s counsel objected to the deed, on account of the variance as to the name of Robinson. The plaintiff’s counsel offered to show that he was known by the name of William Robinson, as well as by that of William T. Robinson, and was called sometimes by one name and sometimes by the other. The court held “ the addition of the letter T, between the Christian and surname of one of the plaintiffs, did not affect the grant, which was to be taken benignly for the grantee. It was no part of his chsis -
To a like effect was the case of Rosevelt v. Gardner, 2 Cowen 463, in which the omission of the initials V. Si from the name of Cornelius V. S. Rosevelt was held to be immaterial, because “the V. S. were no part of Cornelius Rosevelt’s name.”
To the same point are the cases of Alexander v. Wilmarth, 2 Aik. 413, and Isaacs v. Willey, 12 Vermont Rep. 674. In the last-named case, Redfield, J., remarks : “ I do not find any case in which it has been decided that a middle letter is any necessary part of the name ;” and proceeds to distinguish the cases in which there are two or more Christian names, from those in which there is only the initial letter interposed between the Christian and the surname.
We think that a man may be known by two or more names, which, taken together, constitute his Christian name. But that it lies not with any one to say that he is commonly known by a name composed of an appellative word, preceded or followed by a letter only; and we think that, in reading, the initial letter may be omitted, as no part of the name or word by which the person is known. This exception, therefore, fails.
Interest was cast upon the balance due upon the defendant’s judgment against the plaintiff to the same point of time, and then the balance of the judgment, together with, the interest thus found, was deducted from the amount of the Allen and Deming notes and interest. The defendant was accountable for the just amount of the Allen and Deming notes, at the date of their payment. So was he entitled to the balance of the judgment due to him, and interest thereon at the date of the payment of the notes. Interest should be cast' on the balance of the Allen and Deming notes, after deducting the unpaid remainder of the defendant’s judgment, and interest on that balance, cast to the time of the rendition of the judgment in this case.
Upon the facts contained in the report, there should be judgment thereon.
Judgment on the report.