Pierce v. Wood

23 N.H. 519 | Superior Court of New Hampshire | 1851

Eastman, J.

The powers of the court in regard to amendments are very ample. “ Amendments in matters of substance may be permitted in any action, in any stage of the proceedings* upon such terms as the court shall deem just and reasonable, but the rights of third persons shall not be affected thereby.” Rev» Stat., ch. 186, § 11. And by the rules of the court, any amendment may be made, which is consistent with the original declaration and for the same cause of action.

The count in the plaintiff’s declaration, was for money had and received. Under such a count, the plaintiff:' could have specified either the three notes, or the new one given for $1250. All were signed by the defendants, and all had matured at the time of the commencement of this action; and whichever the plaintiff might include in his specification, if he could satisfy the court and jury that they were due, he might recover. But having' set forth the three original notes in his specification, can he be permitted to amend it by inserting a claim for the balance due on the $1250 note ?

The foundation of the plaintiff’s claim, was, we presume from the case, for an indebtedness for goods sold to the defendants. That indebtedness was put into the form of three promissory notes, payable on time, and afterwards into one note, payable on demand. It was then compromised by the payment of one-third of the debt, and this action is for the recovery of the remaining, two-thirds, based upon an alleged fraud in the compromise. Now, whether the specification contain the three notes or the new note, the ground of claim is not changed. The cause of action remains the same ; and both by the Revised Statutes, and the practice in the courts of this State prior to their passage, can the amendment be made. A declaration upon a promissory note may be amended by adding a count for the goods sold and delivered, for which the note was given. Burnham, v. Spooner, 10 N. H. Rep., 165. And the rule laid down in other cases, is quite as broad. Stevenson v. Mudgett, 10 N. H. Rep., 338 ; Elliott v. Abbott, 12 N. H. Rep., 549.

Had this been an application to amend the declaration, we entertain no doubt, that the amendment would have been admissible ; and we do not regard the rules governing the amendment of specifications, as more stringent than those applicable to the amendment of a declaration.

The next exception taken, was to the admission as evidence, of what is termed the contract. It will he borne in mind, that the action is for money had and received. The plaintiff claims, that the defendants are indebted to him, in a sum exceeding seven hundred dollars, which is honestly his due, and which, they, in good conscience, ought to pay. The claim is founded upon an alleged fraud in the compromise, and the action for money had and received, is the proper form. Were the action brought upon the writing itself, the defendants’ exceptions might be good. As to that, however, we need not inquire, since the paper was offered, not as the foundation of the action, but as a piece of evidence to show the alleged fraud. If it could itself, have been made the foundation of an action, it does not, therefore, follow, that it may not be a competent piece of evidence tending to establish facts involved in another action. If the settlement was fraudulent on the part of the defendants, it was void, and the plaintiffs would be entitled to recover; and had not the facts stated in the contract been reduced to writing, it is doubted whether the exception would have been taken, had the attempt been made to prove them by parol. The paper being offered with the view with which it was, as a piece of evidence to show the fraud, and not as evidence of a contract, it would certainly seem that the facts stated cannot be less weighty, or more exceptionable, because the plaintiff took the precaution to have them reduced to writing. The ruling of the court, admitting the evidence, was correct.

The statements of Quimby, one of the partners, and one of the defendants, made while the negotiations for a compromise were going on, and tending to show fraud, were admissible. The declarations of one of two partners, joint defendants, made after a dissolution of the firm, are evidence against both, as to any contract made before dissolution, whether the other partner is present or not. Mann v. Locke & al., 11 N. H. Rep., 246. The doctrine of this case, would tend strongly to the admission of the evidence. But Story, in his work on partnership, seems to place the matter beyond controversy. It is there laid down, that the representation of any fact, or a misrepresentation of any fact, made in any partnership transaction by one partner, will bind the firm. It is also said, that the principle extends further, so as to bind the firm for the frauds committed by one partner in the course of the transactions and business of the partnership, even when the other partners have not the slightest connection with, or knowledge of, or participation in, the fraud. Story Part., § § 107, 108.

At the time the compromise was effected, the defendants were in partnership. The debts to be settled, were partnership debts. The compromise was for the benefit of the firm. It was an act done by and for the firm, and the defendants were jointly interested in it. It was strictly partnership business. The property which was the subject of the conversation, was part of that which was conveyed to the creditors to effect the settlement, and the defendants both stipulated, that any fraudulent concealment should vitiate the compromise. Their attention was particularly called to the matter, by being reduced to writing, and the statements of either of them, as to the property conveyed during this negotiation, and tending to show fraud as to the settlement, were, we think, clearly admissible, for the purpose of rendering void the compromise.

Upon general principles, the ruling upon the next point was wrong. What a party to a suit says himself, cannot ordinarily be evidence in his favor. But this point in the case, appears to be entirely passed over in the defendants argument; and hence we infer, that the evidence proved to be immaterial, or was of that character, when brought out, that no exception could be sustained against it. The statements, to which the witness testified, are not reported in the case, and from the brief allusion to the matter, we judge that the evidence was immaterial. A new trial will not be granted, on account of the admission of immaterial evidence. Hamblett v. Hamblett, 6 N. H. Rep., 333 ; Clement v. Brooks, 13 N. H. Rep., 92.

Whether the- deposition of Enoch Wood was in its character strictly rebutting or not, a new trial cannot be granted on account of its reception. We have no established rule, which requires a party to introduce all his evidence, except such as is properly rebutting, before he rests his case. It is recommended by the court, but not insisted upon; and evidence, which is not strictly rebutting, may, in the discretion of the court who try the cause, be received at a subsequent stage of the trial. The better practice, no doubt, is for each party to put in his whole case before stopping. A case that is properly prepared can ordinarily be tried in this way, more understanding^, and with considerable more dispatch, than by introducing the evidence by instalments.

The exception and request of the defendants as to the first position in the charge of the court, undoubtedly went upon the ground that the amendment to the specification was inadmissible. Upon that assumption, the exception would be well taken; but the amendment having been allowed, the instruction was unexceptionable. The effect of the instruction, considered in connection with the converse of the proposition embraced in it, would be, that if the compromise was avoided by fraud, then a recovery could be had, either upon the old notes, or the new one; and whether upon the latter or former, would depend upon the question whether the new one was received in discharge of the former ones.

The questions embraced in the two next paragraphs of the case were in effect decided when considering the admissibility of the declarations of Quimby, as competent evidence to show fraud. Partners are not agents of each other, in ordinary transactions, for the purpose of committing frauds, but whatever is done by either in the general partnership business, within the scope of that business, whether it be honestly, or dishonestly transacted, must govern the firm. Locke v. Stearns, 1 Met. Rep., 560. And if, in effecting the compromise, either partner did any act, or made any representations embraced within the partnership business, for the purpose of carrying out the agreement, it was admissible, whether fair or fraudulent. The course taken by the court, and the instructions given, were we think, correct.

We also think, that the refusal of the court to rule as requested upon the next point, was correct. The defendants requested the court to rule, that if the plaintiff would set aside the contract of settlement upon the ground of fraud, he must, before he could maintain an action of assumpsit on the original contract, return, or offer to return to the defendants what had been received from them on the settlement, or place them in the same situation they were in before the settlement. This the court declined to do.

The doctrine of the rescission of contracts will hardly apply to a case of this kind. The whole foundation of the plaintiff’s right to recover rested upon the question of fraud. If fraud was made out, then the plaintiff could recover, otherwise not; and the whole trial proceeded upon that ground. Fraud being established, the compromise became void, and the plaintiff’s entire debt would at once be revived, and a clear right of action exist in his favor. And it appears to us, that it would be a singular doctrine, to hold that before an action can be maintained to recover the balance, that portion of the plaintiff’s demands which had been paid, must first be refunded, — that before he can institute a suit for the amount out of which he has been defrauded, he must first repay that which was honestly his due, and which, so far as he was concerned, he has honestly received. Such a rule would be offering a premium for fraud; and in most cases of the kind, a plaintiff might better retain the per cent, which he has received, than relinquish that, for the uncertainty of recovering the whole.

The objection to the verdict can be obviated by a remittitur. The damages assessed were computed by the three notes, or the new one. The new note embraces more than was actually due; and if the verdict is for a larger sum than the sixty-six and two-thirds per cent., it can easily be ascertained by arithmetical computation, and the proper correction made. Hoit v. Moulton, 2 N. H. Rep., 323 ; Sanborn v. Emerson, 12 N. H. Rep., 58. With the understanding that a remittitur shall be entered for the excess, if any be found, there may be,

Judgment on the Verdict.