25 Pa. 63 | Pa. | 1855
Lead Opinion
The opinion of the Court was delivered by
This was an action on promissory notes, the execution of which being admitted, the plaintiffs’ case was made out, when they were put in evidence.
The defence was, that the plaintiffs had compounded with the defendant, and released him from liability on the notes in suit, in consideration of other notes with approved security, for fifty per cent, of the debt, at twelve and eighteen months, and his own note for twenty-five per cent, at five years. The defendant was a country merchant, having several Philadelphia creditors, and the instrument of release, dated August 24,1848, was evidently drawn with a view of being signed by all those creditors. It stipulated, indeed, that all of the defendant’s Philadelphia creditors should agree to the same, otherwise it was to stand null and void.
Now nothing can be more plain, than that a defendant seeking to defeat a clear legal liability under such an instrument, was bound to prove performance of every condition on which its effect was limited. It was for him to show, that the new securities mentioned in the release had been prepared and tendered, and that all
Of the execution of the release by the! plaintiffs and some thirteen other creditors, and of the tender to the counsel of plaintiffs of notes, such'as the instrument stipulated for, he gave evidence; but of the assent of all of his' Philadelphia creditors, he submitted. not a particle of proof, nor did he attempt to show that the thirteen creditors were all of his Philadelphia creditors. There was a total failure of the defence. The release .was null and void when the defendant rested his ease. The plaintiffs had never agreed to be bound by it, unless all the creditors assented to it, and the defendant had not shown who all his Philadelphia creditors were, nor that they had ass'ented. To give him the benefit of the release, in the absence of such proof,.was to pervert it from the purpose plainly expressed on its face, to another and different purpose never' contemplated by the parties.
But the plaintiffs gave evidence, by three Philadelphia créditos' of the defendant, that they refused to sign the release, and did not assent to it. Here, then, was a defence involving a fact indispensable to its completeness — a fact peculiarly and exclusively within the power of the defendant to prove, and which it was his legal duty to prove, in support of which he submitted not a tittle of evidence, but which th'e plaintiffs disproved by three unimpeached and uncontradicted witnesses; and yet the Court submit^ ted that fact to be found by the jury, and they found it. .
Now, the law of new trials is not to be administered upon writs of error; nor are we to be betrayed, even by a gross case, into an
We see no objection to the definition which the Court gave of the expression “approved securities,” and the question, whether those tendered were sufficient, was properly submitted to the jury; but we think the Court’s unqualified affirmance of the defendant’s second point was calculated to mislead the jury. Packer’s failing to urge any other objection to the notes, than the inadequacy of the security, was not a waiver of all other objections. It was still open to his clients to allege that all of the Philadelphia creditors had not assented to the release. But from the manner in which the point was put and answered, the jury might well infer that the Court considered the objection waived, and that, whether all the creditors had assented or not, the plaintiffs were bound by the release, if the securities tendered to Packer were such as ought to have been approved. We repeat, that they were not bound without that universal assent stipulated in the release.
■ The judgment is reversed, and a venire de novo awarded.
Dissenting Opinion
dissent from so much of this opinion as holds that it was error to leave to the jury the question of fact, whether or not all the creditors had released.