50 N.C. 39 | N.C. | 1857
The defendants were garnished as the debtors of Glines *40 and Graham of New York, against whom the plaintiff had taken an attachment and had obtained a Judgment in Hertford Superior Court.
It appeared in evidence, that Glines, one of the above-named firm, had removed to Murfreesboro', in this State, and opened there a mercantile establishment; that about the last of November, or 1st of December, 1855, a conversation took place between him and the defendants, in which the latter said they had vessels on the way from New York to Murfreesboro', and expressed a wish to get lading from them. They asked the defendants if they had any corn to ship, to which defendants replied, that they had; that it had cost them seventy cents per bushel; that corn had fallen in price, and that it was a bad time to ship. To this, Glines rejoined, "If you will ship your corn in our vessels to New York, we will guarantee you seventy cents and a profit over and beyond"; to which proposition the defendants made no reply. It also appeared that, early in the month of December of that year, vessels belonging to Glines Graham reached Murfreesboro', but the defendants did not ship any corn in them. In the month of January, 1856, (about the 22nd,) other vessels belonging to Glines Graham, arrived at Murfreesboro', on board of which, corn, belonging to the defendants, to the amount of nine hundred and seventy bushels, was shipped. In consequence of ice in the sound and river, and boisterous weather, these cargoes did not reach New York till the last of February, or first of March ensuing, when corn had fallen from seventy-six to fifty cents per bushel.
Glines and Graham advanced cash on the corn shipped by them, which exceeded in amount the price for which the corn was sold in the New-York market, by some two hundred and fifty or three hundred dollars, and it was for this excess that the plaintiff sought to charge the defendants as the debtors of Glines and Graham.
The defendants contended that they had sold the corn to Glines Graham at seventy cents, and relied on the proof, as *41 stated above, of the proposition of that firm to guarantee that price.
The Court, among other things, charged the jury, that if the defendants did not accede to the proposition of Glines Graham, to guarantee a certain price for the corn, when it was made, it did not remain open to be accepted thereafter, unless assented to by Glines Graham; for that the law required the assent of both parties to make a contract of guaranty binding. Defendants excepted.
Before the jury was empannelled, the defendants, by their counsel, moved to amend their answer and also to plead the following facts; At _____ term of Hertford County Court, Lawrence and Lassiter, creditors of Glines and Graham, who had, before the plaintiff caused the defendants' indebtedness to be attached, made up an issue with the defendants, precisely similar to that about to be tried, wherein the jury had returned a verdict that there were no funds or indebtedness in the defendants' hands, beyond a certain sum confessed by them in that suit, and which had been paid by them to the said Lawrence and Lassiter, under the judgment of that court. These amendments were refused by his Honor, and the defendants' counsel again excepted.
Verdict for the plaintiff; judgment and appeal by the defendants. We concur with his Honor, that as the defendants did not accede to the proposition of Glines and Graham, as to shipping the corn upon a guaranty that it should bring seventy cents per bushel at the time the proposition was made, it did not remain open, and the defendants could not therefore assent to it without the concurrence of Glines and Graham."It takes two to make a bargain" is a maxim of law, the soundness of which strike the good sense of every one, so that it has become a "common saying." *42
It may be, that if the defendants had shipped corn in the vessels that were then on their way from New York, and arrived in Murfreesboro' early in December, there would have been good ground for contending, that as the proposition was made in reference to those vessels, it remained open until their arrival. But the defendants did not avail themselves of that opportunity for making a shipment; so the question does not arise. We consider it very clear that they were "behind time" in shipping on the other vessels that arrived on the 22nd of January; because it does not appear that these vessels were "on their way to Murfreesborough from New York" at the time the proposition was made; consequently, there is no pretext for saying it was made in reference to them, and there is no ground to support the position that it remained open until their arrival.
Mr. Smith for the defendants assumed the position, that the proceeding in a garnishment is in the name of the absconding debtor(as plaintiff), to the use of the attaching creditor, against the debtor who is garnisheed, and from this he deduced the conclusion, that the proceedings in the garnishment of Lawrence and Lassiter, where there was an issue, and verdict that there were no funds in defendants' hands, except the amount confessed, was an estoppel of record, being upon the same fact put in issue by the present proceedings, and between the same parties to wit, the debtor as plaintiff, and the present defendants.
We deny the premises. The proceeding in a garnishment is in the name of the attaching creditor, who, by force of the statute, is the assignee of the absconding debtor, for the purposes of the attachment; so the parties acting as plaintiffs, in the two proceedings were not the same; and consequently the verdict in the former does not conclude; being res interalios acta It would be strange if this were not so, for the attaching creditor in one garnishment may be content, if enough is found to pay his debt, to let a verdict pass in favor of a defendant as to the residue; or at all events, he may not feel disposed to contest the matter, while the creditor in *43 another garnishment may be disposed to do so, and there can be no reason why the way should not be left open for him. This disposes of the question in reference to the amendment, and it is unnecessary to enter further into it.
It was then insisted, that as the plaintiffs were nonsuited in the county court, they had no right to appeal. It is every day's practice in the superior court, for a plaintiff to submit to a nonsuit, in deference to an intimation of the court, and appeal. The same practice is applicable to the county court. If the plaintiff thinks the has not made out his case, there is no reason why he may not submit to a nonsuit and take an appeal; for it does not amount to a retraxit or voluntary abandonment of his suit. There is no error.
PER CURIAM. Judgment affirmed.
