204 P. 107 | Utah | 1922
The plaintiff commenced this action against, the defendant to recover judgment upon a promissory note. The complaint
The defendant, in his answer, “admits the execution and delivery of the note sued upon, and that he has paid $6.50 to the plaintiff.” After denying “every other allegation of plaintiff’s complaint,” the defendant averred that on June 1, 1916, he was indebted in the sum of $450, from which debts he was “discharged in bankruptcy,” and that “among which debts so discharged was a Nord Clothing Company debt, a T. H. Nott debt, and an Electa Hemingway debt.” The defendant then sets forth the facts respecting certain garnishment proceedings in which his wages were “unlawfully and unjustly” garnished by plaintiff, and that in connection therewith certain false and fraudulent statements and representations, stating them in detail, were made by plaintiff to the defendant, which statements defendant believed, and upon which he relied; “that the defendant, so relying-upon and believing said false statements and misrepresentations, executed the note sued upon.” The defendant further averred “that the execution and delivery of said note was obtained by the plaintiff and its said agent by means of undue influence and duress.” As a further defense the defendant averred “that the said note sued upon was issued without any consideration whatever.”
In view of the conclusions reached, we have set forth the averments of the answer in general terms only.
The plaintiff produced in evidence the note in suit, which we have set forth in full:
“1211.64.'
“Salt Lake City, Utah, April 1, 1920.
' “After date, for value received, I promise to pay to the order of Merchants’ Protective Ass’n two hundred eleven & 64/100 dollars negotiable and payable at the general office of the Merchants’ Protective Association, Salt Lake City, Utah, without defalcation or discount, with 12 per cent, interest per annum, from date until paid, both before and after judgment or decree, and if legal proceedings be begun for collection of this note, the undersigned agrees to pay a*473 reasonable attorney’s fee. If $6.50 is paid now and $3.50 on 4/18/20 and $2.50 on the 3d and $2.50 on the 18th of each month hereafter until $134.53 has been paid it is to be in full. Otherwise no discount to be allowed.”
[Signed] M. Popper.”
Tbe ease proceeded to trial to a jury upon the foregoing issues.
At the trial the plaintiff, after introducing the note, also produced evidence which tended to show that the consideration for which the note in suit was given was as follows: The Hemingway claim, which amounted to $11; the Nord Clothing Company claim for $104.98; the T. H. Nott claim for $12.35, and $6.50 costs in: the garnishment proceedings— all of which claims, omitting the amounts, including the $6.50, are referred to in defendant’s answer; that the several claims aggregated the sum of $134.83, and that the balance of the note was made up of accrued interest; that the condition in the note waiving interest was writteh therein if the defendant would pay the amounts as stated in the condition; that the several claims referred to had been discharged in the bankruptcy proceedings referred to in defendant’s answer, but that he had agreed to pay said claims notwithstanding his discharge, and to evidence his promise had .executed the note in question.
The defendant admitted the execution of the note, but de-' nied that he had agreed to pay the claims referred to, or any of them. He denied that he executed the note for the purposes stated by the plaintiff. He testified that he was induced to execute the note by reason of the statements and misrepresentations of the plaintiff. The defendant, however, insisted at the trial, and now insists, that the note was not given as a new promise to pay the claims before referred to, or any of them. There was also some evidence on behalf of defendant respecting plaintiff’s misrepresentations and conduct in the matter which he insisted misled him and induced him to execute the note in question. The evidence in that regard was, however, not very specific.
After the evidence was all in the court instructed the jury to disregard the defenses of fraud, misrepresentation, and
The court correctly charged the jury that the original debts constituted a sufficient consideration for a new promise to pay them, and that a new promise to pay a discharged debt must be clear and unequivocal to pay' the particular debts which were discharged in bankruptcy, and that the debts covered by a new promise must be identified to be those that were discharged in the bankruptcy proceedings. Such, no doubt, is the law. See Zavelo v. Reeves, 227 U. S. 625, 33 Sup. Ct. 365, 57 L. Ed. 676, Ann. Cas. 1914D, 664,
The court in this case further charged the jury:
“In order that you may find a verdict for the plaintiff you must find by a fair preponderance of the evidence: First, that the claims of T. H. Nott, Electa Hemingway, and the Nord Clothing Company, which had theretofore been discharged in bankruptcy, had not been paid prior to the execution of said note; second, that at the time of the execution of the note the plaintiff expressly and unequivocally agreed to accept and defendant expressly and unéquivocally agreed to make and deliver the note in settlement of, of as a new promise to pay, those specific claims, and no others; third, that the note correctly states the amount then unpaid upon those claims, and is not in excess of the amount unpaid upon those specific claims at the date of said nojte.”
The plaintiff excepted to each of the propositions contained in that instruction separately, and also excepted to the instruction as a whole.
The plaintiff vigorously insists that the instruction does not correctly state the law. It will be observed that the instruction starts out with the statement, “In order that you may find a verdict for the plaintiff you must find, ’ ’ etc. The whole case, so far as the plaintiff is concerned, is therefore
Tbe first proposition is manifestly faulty because no claim was made in either the pleadings or evidence that tbe three claims, or any of them, had been paid “prior to the execution of the note.” There was evidence that other claims not discharged in bankruptcy proceedings were paid by the der fendant, but those, three claims, he specifically alleged in his answer, were discharged in those proceedings. That error in the charge is, however, not so material, and the plaintiff does not seriously insist upon it.
The error in the second proposition is, however, more serious: The jury is there charged that, unless they find “that at the time of the execution of the note the plaintiff expressly and unequivocally agreed to accept and. the defendant expressly and unequivocally agreed to make and deliver the note in settlement of, or as a new promise to pay, those specific claims, and no others,” plaintiff could not recover, (Italics ours.) It is not the law that the promisee must expressly and unequivocally accept the new promise. The acceptance may be implied, and the rule of law that is usually and ordinarily applied is that acceptance may be implied (1) if the promise is beneficial to the promisee, and (2) if he acts upon the promise. In no case, however, is, the law to the effect that the promisee must expressly accept
Nor is the law correctly stated in the third proposition of the instruction. If the defendant did promise to pay the three claims, then the mere fact that in adding them together a mistake waá made as to their aggregate
All of those errors are vital because the court rested plaintiff’s whole case upon any one of them.
It is, however, insisted that, although the instruction be erroneous, still no prejudice resulted because the jury found that the minds of the parties did not meet, in that the defendant did not agree to pay the particular claims in question. Whether, he did or did not so promise is, however, one of the principal questions, if not the controlling one, in this case. Moreover, in view that the parties did not reduce the whole of the agreement to writing, it became purely a question of fact. There is — there can be — no doubt that a promise to pay the amounts specified in the note was made in express terms. The note in suit is such a promise, and the defendant solemnly admitted in his answer that he had executed and delivered the same. In considering this phase of the ease it must be kept in mind that the only defenses the defendant interposed to the note were that it had been obtained by means of misrepresentation, fraud, and duress, and that there was no consideration for the promise to pay. The court, however, held, as matter of law, that the defenses of misrepresentation, fraud, and duress were not established and therefore those defenses are out of the ease.
Now, the promise to pay may fail because the debts that were discharged in bankruptcy were not sufficiently identified, or the promise may have been obtained by fraud, etc., so that the promise cannot legally be enforced. If, therefore, there are a number of claims that have been discharged in the bankruptcy proceedings, and not all of them are included in the new promise, then those that aré included must be specifically mentioned or identified in the new promise. If that is not done it will be impossible to determine what claims are included in the new promise, and hence the promise cannot be enforced. In the ease at bar the promise is clear and unequivocal, and, according to plaintiff’s
It is contended that the jury found that the minds of the parties did not meet respecting the promise to pay these discharged debts. In view that the court charged the jury that, unless the plaintiff expressly accepted defendant’s promise to pay, and that there is no evidence of such an express acceptance, how can this court, or indeed, how can any one, say upon what the jury based its finding? In the case at bar, in view that there was no evidence that the plaintiff had expressly accepted defendant’s promise to pay, the jury was compelled to find against the plaintiff upon that issue, which
As hereinbefore stated, the defendant in his answer also interposed the defense of fraud and misrepresentation on the part of plaintiff, which defense the court withdrew from the consideration of the jury. In view that no cross-assignments of error were filed by the defendant, the ruling of the court is not presented for review in the sense that relief in this proceeding can be granted for any error in that regard. In view, however, that the judgment must be reversed and the case remanded, it becomes our duty under the statute to indicate our views respecting the ruling of the court so as to avoid a repetition of the error if it be such. While it is true that there was no substantial evidence of duress, and hence that defense was _ properly withdrawn from the jury, and, while the evidence in support of the alleged fraud and misrepresentation is weak and inconclusive, yet the defendant produced some substantial evidence upon that subject which should have been submitted to the jury under proper instructions. Where a case is tried to a jury and there
In this connection we also desire to state that, while the averments respecting the misrepresentation and fraud in the answer may not be as specific as they might be made, yet they are sufficiently specific to admit evidence upon that subject, and the court should not have withheld those
In concluding this opinion it is proper to state that an opinion was heretofore handed down in this case affirming the judgment. After the opinion had been filed plaintiff’s counsel, within proper time, filed an application for rehearing in which the errors in the instruction hereinbefore referred to were more fully pointed out, and, upon more mature reflection and consideration of the instruction, we have become fully convinced that the errors therein contained are of such a character as necessarily resulted in prejudicing the plaintiff in its rights. Moreover, in view of the nature of the errors, nothing could be gained by a reargument of this ease. Indeed, it could only result in prolonging the litigation. We have therefore concluded to dispose of the case at this time. This opinion is therefor? substituted for the former one, and will be the opinion published in this case as the opinion of the court.
In this connection we, however, also desire to state that plaintiff’s counsel, in his argument in support of his application for rehearing has been guilty of conduct which we cannot condone or pass unnoticed. While no doubt counsel frequently make statements in their applications for rehearing that are uncalled for, and the effect of which is not fully appreciated by them, yet much that is thus stated must be attributed to the zeal of counsel, and in most instances may be overlooked and entirely disregarded by this court. The criticisms of counsel in this case, however, go far beyond mere zeal, and border upon being contemptuous. His criticisms are of a kind which engenders heat, rather than light, and which in their essence impugn the judgment and good motives of the members of this court. Ordinarily, courts strike improper arguments of counsel from the files and refuse to consider them. Such, except in very extreme cases, is not the practice of this court, since to do that, as -a rule, merely punishes counsel’s clients, who are entitled to justice notwithstanding the breaches of their counsel, for whose conduct the clients are rarely directly responsible. We can, how
For the reasons stated, the judgment is reversed, and the case is remanded to the district court, with directions to proceed in accordance with the views herein expressed. Neither party to recover costs on appeal.