12 N.C. 404 | N.C. | 1828
"William G. Burgess and Josiah Jordan, of Elizabeth City, being desirous of entering into the commercial business, and W. G. Burgess for the purpose of purchasing goods for the said concern is about going to the north, and subscribers having been long acquainted with them, and having full faith in their honesty and integrity, recommend them as entitled to the confidence of merchants in Philadelphia, and are willing to hold themselves responsible for the payment of purchases made at this time, not exceeding the amount of $2,000.
"WILL T. MUSE.
"This 30 September, 1822." "AMBROSE KNOX.
He then proved that in the month of October, 1822, in consequence of this letter, he furnished Burgess with goods to the amount of $2,740, at six months credit. The following letter was then put in and read by the plaintiff:
"ELIZABETH CITY, 18 September, 1823.
"MR. THOMAS SHEWELL.
"SIR: — Your letter addressed to William T. Muse and myself, informing us of the nonpayment of the debt contracted *269 with you by Burgess Jordan, of this place, so far as we are bound on our letter of credit given them some time in the fall of 1822, was received by Mr. Muse, who, having since died, I am at this moment without any correct information as to the amount of your claim against the said B. and J. Mr. Burgess expects to be in Philadelphia in a very short time, and I understand the house has made a shipment of wheat to your place, which I calculate is intended for the liquidation of the debt for which the late Mr. Muse and myself are responsible. The object of this letter is to request of you to use your best endeavors to obtain a full payment from Mr. B. for your claim against B. and J., or, in failure thereof, immediately to transmit to some attorney here the amount and voucher of your claim, with directions to proceed on the receipt thereof to the enforcing of payment. My becoming responsible from motives of friendship to Mr. Jordan, of said firm, and hearing that a dissolution of partnership will take place, besides being very desirous of having their affairs, so far as I am responsible, settled, causes this request.
"I have also understood that a shipment of wheat has been made by them to New York, the proceeds of which, I doubt not, are now ready for their disposal, and perhaps you may make an arrangement with Mr. B. to obtain payment for your whole claim. Your immediate and particular attention will much oblige, Yours respectfully,
"AMBROSE KNOX."
Burgess was examined by the defendant, and proved (406) that in the fall of 1823 he shipped a quantity of wheat to New York and Philadelphia, nearly sufficient in amount to discharge the debt due the plaintiff; that directly after the shipment he went to the north, and called upon the plaintiff in Philadelphia, who informed him that his sureties had requested an action might be brought against him; that he stated to the plaintiff the shipment of wheat, and the utter impossibility of his doing anything until its arrival, or until it was lost, so as to enable him to call upon the underwriters; that he went on to New York, where he was arrested at the suit of the plaintiff, and was discharged upon delivering orders to the consignees of the wheat to pay the net proceeds of it to the plaintiff; that no directions were asked for by the plaintiff, or given by him, as to the application of those proceeds; that the wheat turned out to be damaged, and only netted $400, *270 which was paid to the plaintiff, and that in the ensuing fall or winter the copartnership of Burgess Jordan became insolvent.
His Honor, Judge Paxton, charged the jury that from the terms of the letter of guaranty the plaintiff ought to have given notice to the defendant that he held him responsible upon the guaranty. His Honor left it to them to say whether such notice had been given, and told them that if they inferred it from the letter of the defendant of 18 September, 1823, they ought to find for the plaintiff, as the notice was in law reasonable.
A verdict was returned for the plaintiff, and the defendant appealed. In this case it is objected to the plaintiff's recovery, that he did not give to the guarantors early notice that he looked to them for payment; andMcIver v. Richardson, 1 Maule and Selwin, 557, is relied upon. In that caseLord Ellenborough says there was only an offer to guarantee, not a complete guarantee, and on that ground the case was decided. But in this case the guarantee is complete, and the parties so contemplated it, for it was their understanding of it that Burgess should procure the goods upon it before he returned, and in fact did so.
But the defendant Muse had noticed that their guarantee was relied upon for payment; and this is evidenced from Knox's letter. At what time the notice was received does not appear. But the defendant thought it important; he had it in his power to show it, by producing the letter. This he has not thought proper to do. Besides, Burgess Jordan resided in Elizabeth City, where, or near to which, it may be inferred that the defendant and Muse also lived; for Knox's letter bears date at that place, and it appears from that letter that Knox had a knowledge of their situation, when he informed the plaintiff of the shipment of the wheat as a means of payment. It may, therefore, be taken for granted that they had notice, and had it in their power to secure themselves against loss in case it was practicable.
It appears that the plaintiff made an effort to procure payment from Burgess in the fall of 1823, but failed in effecting it; that in that fall, or the winter following, Burgess Jordan became insolvent. *271
No objection was made on the trial, or evidence offered (412) to show that an injury was sustained, either for the want of early notice to the guarantors that they were looked to for payment, or that the plaintiff had been guilty of neglect or laches in not endeavoring to procure payment from Burgess Jordan.
This case is not to be tested by principles which govern negotiable instruments, but the principles of fair dealing and common sense. If no loss was sustained for want of early notice, such notice need not be proved. If no loss was sustained by not suing Burgess Jordan, it was unnecessary to bring suit. This is established by Warrington v. Furbor, 8 East, 246; Williams v. Collins,
The question whether due exertion would have procured satisfaction from the debtor, was not discussed in the court below, as may be inferred from the record; the propriety, therefore, of granting a new trial or of refusing it depends on whose duty it was to bring that subject before the court, and we think it was the duty of the defendant, for clearly it was a ground of defense, that due exertion had not been made, and not (413) the ground of charge that it had been made.
If the defendant can show that the debt has been lost through the plaintiff's neglect, it is an answer to this action, because the defendant undertook for no more.
As to the plaintiff's discharging one of the principal debtors, when arrested in New York, it must be taken for granted that no loss was sustained by the defendant, for he has shown none; the law does not in this case, as in negotiable instruments, require any specific acts of diligence, but puts the question on *272 the broad and liberal ground of reasonable exertions, and loss through the want of them. If we could collect from the case that these grounds of defense were offered to the court, and overlooked by it, we should be disposed for that reason to award a new trial; but this does not appear, and we must refuse it.
HENDERSON, J., concurred with the CHIEF JUSTICE.
PER CURIAM. Judgment affirmed.
Approved: Farrow v. Respass,