10 Ala. 755 | Ala. | 1846
The first charge given to the jury, merely affirms that if A., L. & Co. received the assets of A. &, T. under an agreement with T., to pay their debts, “it was a sufficient undertaking, and not within the statute of frauds, as to any thing involved in this case.” Such a contract is not obnoxious to that provision of the statute of frauds which declares, to “no action shall be brought whereby to charge the defendant upon any special promise to answer for the debt, default, or miscarriage of another person.” The testimony which induced this charge is thus stated in the bill of exceptions: “ The terms on which said Terry went out, and said Lee & Yarborough came in, were, that said new firm of Abrahams, Lee & Co. should have all the assets of the firm of Abrahams & Terry, of every kind, and should assume to pay all its debts; and in pursuance of this arrangement, said new firm received the assets of said firm of Abra-hams & Terry, to pay its debts, and said Terry went out.” Here was clearly a sufficient consideration moving from Terry to Lee, to support the undertaking of the latter, and this is quite enough to relieve the agreement from the influence of the statute of frauds, whether we consider the promise of Lee
The second instruction seems to us to assert a legal truism, viz: that it does not come within the scope of the business of one partnership $o pay the debts of another, but where the former receives the assets of the latter, under an agreement thus to appropriate them, then the payment of such debts becomes a legal duty.
It is equally clear that the note which was taken by the plaintiffs’ agent of Abrahams, must have been received in payment of their account, or the plaintiffs may prosecute an action on the account, as if the note had never been made, unless something subsequently occurring makes a different rule applicable. It has been often held, that a debt is not extinguished by the acceptance of an obligation of equal dignity. [Bowers v. State, 7 H. & Johns. 32; Clopper v. Union Bank, Id. 92; Hart v. Boller, 15 Sergt. & R. Rep. 162.] But a specialty is an extinguishment of the account for which jt is substituted. [Mills v. Starr, 2 Bailey’s Rep. 359.] Whcr
It has been decided, that a substituted note does not constitute a payment of an original one, which was valid, where the new note is avoided on the ground of usury. [Johnson v. Johnson, 11 Mass. R. 359; 1 Pick. Rep. 415; Stebbins v. Smith, 4 Id. 97, 100; Watkins v. Hill, 8 Id. 522; Ramsdell v. Soule, 12 Id. 126.] So it has been repeatedly adjudged, that a bill or note of a debtor, or any other person, is not a payment of a precedent debt, unless it be expressly so agreed. [Kennell v. Mungey, Peck’s Rep. 273; Murray v. Gouverneur, 2 Johns. Cases, 438; Tobey v. Barbour, 5 Johns. Rep. 68; Johnson v. Weed, 9 Id. 310; Herring v. Sanger, 3 Johns. Cases, 71; Bill v. Porter, 9 Conn. Rep. 23; Higgins v. Packard, 2 Hall’s Rep. 547; Chastain v. Johnson, 2 Bail. R. 574; McGinn v. Holmes, 2 Watt’s Rep. 121; Gilmore v. Bussey, 3 Fair. R. 418.] A promissory note given to a creditor, if it is not intended by the parties as a payment, shall not operate as such. [Maneely v. McGee, 6 Mass. Rep. 358; Goodenow v. Tyler, 7 Mass. 36; Emerson v. Prov. Hat Man. Co. 12 Mass. R. 237; Vancleef v. Therasson, 3 Pick. R. 12.] But it has been held that when a debtor gives his negotiable note to his creditor, for a debt due by simple contract, the presumption is that it was received in payment; this presumption may be controlled by evidence that such was not the intent of of the parties. [Baker v. Briggs, 8 Pick. Rep. 122; Reed v. Upton, 10 Id. 522; Jones v. Kennedy, 11 Id. 125; Wood v. Bodwell, 12 Id. 268; Hoar v. Clute, 15 Johns. R. 224; Harrison v. Hicks, 1 Porter’s Rep. 423.] The mere giving of a promissory note is not the payment of a pre-exist-ing book debt, and upon default of the payment of the note, the creditor may recover upon the original consideration. [Putnam v. Lewis, 8 Johns. Rep. 389; see Hays v. McClung,
In The Bank of the Commonwealth v. Ray, 7 J. J. Marsh. R. 272, a new note was given at a bank as a renewal of a former note, including one new obligor, and dropping two of the former, and the bank, after notice that the signature of one of the sureties to the second note was a forgery, brought a suit thereon, obtained judgment against one of the obligors, issued execution, and made part of the money out of one of the parties to the second note: Held, that these facts showed a state of things amounting to a payment and discharge of the first note.
It is conceded, that although the third instruction may be correct, as the assertion of a legal proposition, yet it was not adapted to the evidence in the cause, and was calculated to mislead the jury, to the prejudice of defendants. The mere fact that the note was indorsed with the names of the plaintiffs, the payees, does not warrant the inference that that they had made some third person, the proprietor of it. We know that according to the usual course of business notes in the form of that now in question, are indorsed by the holder when they are delivered to the officers of the bank for collection ; and it is not an unfair inference to presume that the
In instructing the jury, that to make the note a satisfaction of the account, there should have been an express agrément to that effect, it is clearly true that the court followed some adjudged cases. Whether these decisions lay down the law in terms too stringent, we will not stop to inquire, since it is clear, (no matter how this may be,) if the defendant’s intestate was ever liable on the account, the liability is undischarged b}r any thing shown at the trial.
The agreement between Terry and Lee upon the withdrawal of the one and the coming in of the other, enured
To entitle a party to maintain an action upon a contract;, it must have been made with him, or he shouldhave beenle-gaily and really interested in it when made. [Dawes v. Peck, 8 T. Rep. 332; Anderson v. Martindale, 1 East’s Rep. 497; Skinner v. Stocks, 4 B. & A. Rep. 437.] It is not enough that he have an equitable interest. [Shaw v. Sherwood, Cro. Eliz. Rep. 729; Allen v. Jeulett, Holt’s Cases, 641; Carnezie v. Waugh, 2 D. & R. Rep. 277; Phillips v. Bateman, 16 Easts Rep. 370.] There can be no question that a party may not only sue upon a contract made by an agent, previously appointed, but he may in some cases adopt a contract made for his benefit. [Ker v. Osborne, 9 East’s Rep. 378; Owen v. Bowen, 4 Carr. & P. Rep. 93.] It should appear that the plaintiff is the only person with whom the contract was made, or in whom the legal interest was vested at the time it was made; for all parties in whom the joint legal interest in a contract is vested, must sue for its breach; and this though it was made with several, or was in terms joint and several. [Withers v. Bricham, 3 B. & C. Rep. 254; 6 D. & R. Rep. 106; Eccleston v. Clipsham, 1 Saund. R. 153.] If however, the cause of action and legal interest of the plaintiff in the contract be joint, he need not join any other party, though the words of the contract made another person jointly interested.
It has been held that there may have been a change of credit between the parties which will entitle the plaintiff to recover, though he was not the original contractor with the defendant ; thus, “suppose A owes B $100, andB owesC$100) and the three meet, and it is agreed between them, .that A shall pay C the $100, B’s debt is extinguished, and C may recover that sum against A.” [Tatlock v. Harris, 3 T. Rep. 180; Hodgson v. Anderson, 3 B. & C. Rep. 855; 5 D. & R. Rep. 735.] But it is said to be necessary that B’s debt should be extinguished by the arrangement. [Wharton v. Walker, 4 B. § C. Rep. 163 ; Wilson v. Coupland, 5 B. & A. Rep. 228; Spratt v. Hobhouse, 4 Bing. R. 173.] And this it is said, can only be done by a communication between all the
This conclusion is by no means decisive of the present case, if the intestate, after his initiation into the firm, became liable to the plaintiffs. The intestate, it will be observed, authorized Abrahams to obtain a loan of money from the plaintiffs, upon the faith of his crop of cotton, growed in 1836, to be shipped to them. A loan could not be thus obtained, but the plaintiffs accepted the drafts of A., L. & Co.-, and thus the identical object proposed to be effected by the loan was answered. Now it is clear, that this transaction was not consummated according to the authority which L. conferred upon A.; but it was done in a manner to subserve the same purpose, without, so far as the record informs us, imposing a heavier burthen upon L., who, when informed by A. (shortly afterwards,) what he had done, made no objection. The question isj whether his silence shall be construed into an assent to what A. did.
It is stated to be a well established rule, that where a man srands by, knowingly, and suffers another person to do acts in his name, without any opposition, or objection, he is presumed to have given an authority to do those acts. [Story on Agen. 82-3.] It is competent for a principal to ratify the unauthorized acts or omissions of his agent; especially if the rights of third persons are not thereby prejudiced. If, therefore, “ the principal, upon a full knowledge of all the circurfistances of the case, deliberately ratifies the acts, doings or omissions of his agent, he will be bound thereby, as fully to all intents and purposes, as if he had originally given him direct authority in the premises, to the extent which such acts, doings or omissions reach.” [Story on Agen. 234 to 253.] “ Slight circumstances and small matters will sometimes suffice to raise the presumption of a ratification. But whenever the acts and conduct of the principal are inconsistent with any other supposition, the presumption becomes of course far more violent and conclusive.” [Id. 247.] Long acqui
In respect to the items in the plaintiffs’ account, with which the intestate was chargeable, but for which A. individually, or in connection with the other members of his firm, was liable, it may be remarked that they do not amount to as large a sum as was collected upon the judgment against A. In addition to the costs, A. testifies that f 1701 was made
It is difficult to perceive of any reason why the neglect of the plaintiffs to sue A. more promptly, should affect the liability of L. They were both primary debtors, and if L. had desired a more speedy collection, he should have paid the plaintiffs to the extent of his responsibility, and have sought reimbursement from A of his proportion of the debt.
The admission by the plaintiffs, that the plea which denied that the note declared on in the three first counts of the declaration, was made by the intestate, or by his authority, was true would have barred another action thereon against his representative. The judgment upon this plea being matter of record, would itself have been conclusive in their favor. It is equivalent to a cancellation, and if this be necessary, where the party insisting on it is not liable on the note, it may be regarded as a substitute; especially where a judgment has been recovered upon it against the party chargeable, so as to merge it, and make a part of the file in that suit.
We have gone quite beyond the questions arising upon the charges given and refused. But we have done so in deference to the arguments of counsel. The result of what we have paid is, the judgment must be affirmed.
