Morris v. Bowen

| N.H. | Dec 15, 1872

Foster, J.

It was essential, in order for the plaintiff to make out his case, that he should show that he had been compelled to pay the indebtedness of the defendant to Messrs. Downer, Nevens & Fish. If, to do this, it were necessary to produce evidence of the original note, which was the foundation of the judgment recovered by Downer, Nev-ens & Fish, the record of the judgment obtained thereon was competent for that pürpose.

As between this plaintiff and the defendant, that judgment was res inter alios. If this were any objection to its competency in evidence, the same objection would apply equally to any admission in evidence of the note upon which the judgment was founded. Producing and proving the note would only remove the objection one step further off: for, as to this plaintiff, the admissions and contracts of the defendant are as much inter alios as the judgment.

No one is concluded by a judgment to which he is not actually, or in contemplation of law, a party. But it is said that, even as to third persons, a judgment, if admissible for any purpose, should be taken for such as it purports to be, till something is shown to the contrary ; till something is shown to throw suspicion on its apparent reality and fairness. Vogt v. Ticknor, 48 N. H. 242.

As to the defendant, in connection with Downer, Nevens & Fish, the judgment is not inter alios. He has the means of showing that it was obtained by fraud, or without actual notice, or that it has been paid, if truth will admit of such a showing; and, as in favor of this plaintiff, the defendant is by no means concluded by it. Such was the ruling of the court. It was received in evidence as competent though not conclusive evidence of the existence of the note, and the guaranty for the payment thereof by the plaintiff. The record of the judgment showed the judgment to be founded upon the note described therein.

That record was evidence of the existence of the paper writing therein called a note, — evidence of the existence of the paper, its face and its back, and of the pen and ink marks thereon. As such, and without the supplemental evidence of the plaintiff, it was worthless as a piece of proof. It was evidence of the existence of the writing denominated a note, and of the existence of the writing on the back thereof denominated a guaranty: it was evidence of nothing more, and it was admitted as evidence of nothing more. It was not evidence of the signature of the original note, nor of the signature-of the guaranty. It was not evidence, per se, of an original indebtedness from the defendant to Downer, Nevens & Eisli, nor of the plaintiff’s guaranty thereof, nor of his payment according to the terms of the guaranty, and for no such purpose was it received.

In practice, as we all know, judgments upon promissory notes and similar evidences of indebtedness are only ordered (at least, executions upon such judgments are issued only), upon filing in the clerk’s office, if it may be had, the original note or other evidence of indebtedness, which thus becomes a permanent record and part of the files of the court. An original foreign record cannot be produced in our courts by compulsory process, but only a copy thereof, duly authenticated according to the act of congress of May 26,1790, in conformity with the provisions of the constitution of the United States, article 4, section 1.

The defendant contends that there is no evidence in the case to control the presumption, from lapse of. time, that the judgment has been paid. But the evidence was offered, not to show an existing indebtedness, but only to show, in connection with the plaintiff’s testimony, what the sum and thing was which he said he had once paid for the defendant, — as a link, merely, in the plaintiff’s chain of proofs, quite useless without other supports, but quite strong when joined with other very important links, namely, the plaintiff’s own oral evidence concerning the matter and the substantial admission of the defendant, not that he would pay (so as to take the case out of the statute of limitations, if that had been, as it is not, interposed), but that he has not paid it. The question is not as to the effect, but as to the admissibility of the evidence; and concerning its competency we have not the least doubt.

Was the execution of this note within the scope of the agent’s authority, and thus binding upon his principal ?

The defendant, without any limitation of the power conferred, engaged the plaintiff to purchase of Downer, Nevens & Fish a particular lot of pelts, to be paid for in cotton goods, but furnished no cotton goods or other means of payment.

As the special agent of the defendant for this purpose, the plaintiff was authorized to pledge the credit of his principal, and to make the latter answerable upon a promissory note or other express promise to pay. The case of Emerson v. The Providence Hat Co., 12 Mass. 237" court="Mass." date_filed="1815-03-15" href="https://app.midpage.ai/document/emerson-v-providence-hat-manufacturing-co-6404315?utm_source=webapp" opinion_id="6404315">12 Mass. 237, cited by the defendant upon this point, does not support his argument, but is an authority in the opposite direction. See the remarks of Parker, C. J., page 242.

Authority to accomplish a definite end, carries with it by necessary implication an authority, so far as the principal can confer it, to use such legal and appropriate means as may be necessary to accomplish the object; and if the result cannot be obtained without the guaranty of the agent, unless such means are forbidden, they must be considered as incident to the authority and agency.

Authority to sell implies power to sell with warranty—Palmer v. Hatch, 46 Mo. 585" court="Mo." date_filed="1870-10-15" href="https://app.midpage.ai/document/palmer-v-hatch-8003014?utm_source=webapp" opinion_id="8003014">46 Mo. 585; and authority to buy goods, no funds being provided for the purchase, and no restriction being imposed upon the agent, must imply authority to bind the principal to pay for them; and how can it be material whether the principal shall be thus bound to pay the vendor of the goods, or the agent who obtains them by means of his personal credit? See Story on Agency, secs. 57-60, 102; Backman v. Charlestown, 42 N. H. 125, 131, 132.

But if there can be any doubt as to the existence of an original implied authority to guarantee the payment of the note, evidence of a ratification of the plaintiff’s act is furnished by the defendant’s repeated declarations to the plaintiff that he would pay him if he had the means of doing so. The authority of an agent to execute a written contract for the purchase of lands may be shown by oral ratification, and the acts of the principal, from which such ratification may be inferred, are competent evidence for that purpose. Hammond v. Hannin, 21 Mich. 374" court="Mich." date_filed="1870-10-06" href="https://app.midpage.ai/document/hammond-v-hannin-6634937?utm_source=webapp" opinion_id="6634937">21 Mich. 374.

If a principal knows that a credit has been obtained by his agent, in the course of his business, for his benefit, and, having received that benefit, if he recognizes the claim as fairly entitled to payment out of his property, a jury may well infer a ratification of the contract made by the agent, though originally without authority. Wright v. Burbank, 64 Pa. St. 247.

If the principal have knowledge of his agent’s acts, and do not repudiate them in a reasonable time, they will stand. Where an agent does an unauthorized act, and the act is known to the principal, who makes no objection, this acquiescence will bind him. McLean, J., in Abbe v. Rood 6 McLean 108, 109, citing Story on Agency, sec. 255.

And upon the ordinary principle of estoppel, a principal, who has accepted a deed, for example, made by his agent without authority, will not be permitted to allege the agent’s want of authority. Henry County v. Winnebago Drainage Co., 52 Ill. 454" court="Ill." date_filed="1869-09-15" href="https://app.midpage.ai/document/board-of-supervisors-v-winnebago-swamp-drainage-co-6953859?utm_source=webapp" opinion_id="6953859">52 Ill. 454.

And so this defendant, having, with full knowledge and without objection, permitted the plaintiff to become his guarantor, and not only to buy the goods but to pay for them, and thus having received all the benefit accruing from the transaction, is estopped to deny the plaintiff’s authority.

Upon all these considerations, we are of opinion that the defendants’ exceptions should not prevail, and that there must be

Judgment on the verdict.