Wise v. . Chase

The instrument of January 27 constituted an agreement between the parties. It was an agreement then and there executed on the part of the plaintiffs, by the delivery of the goods to the defendants, if the latter were to transmit the same to St. Louis. If the delivery at St. Louis was to be made by the plaintiffs, then the contract was still executory on their part. There is no statement that the defendants were to transport the goods to St. Louis, but the right to the vouchers was made dependent on the arrival there of the goods. This would seem to have left the burden of transmission on the plaintiffs. Whether an executed contract on the part of the plaintiffs or an executory one, is not, perhaps, important. The question arises upon the defendants' obligation, and the contract in either form furnishes a sufficient consideration for their agreement. That agreement was to deliver to the plaintiffs the vouchers of Gov. Robinson by his quartermaster for the amount of said goods. The sum total of the purchase was not footed up at the time, as would seem from the contract. The number of the articles purchased was stated, and the price per dozen of the articles was stated. A simple arithmetical calculation would give the "amount of said goods." The "amount of said goods," it now appears, was $8,600. When the defendants, by their writing, agreed to give to the said plaintiffs vouchers to the "amount of said goods," they simply agreed to give vouchers which should express on their face that goods had been delivered to the amount of $8,600. I read the contract, therefore, as if it had said: "We do hereby agree to deliver to said Wise Arnold Gov. Robinson's vouchers by his quartermaster, within a few days after the arrival of said goods at their destination, at St. Louis, for the amount of $8,600." The writing contains all the elements of a perfect contract, as distinguished from a mere receipt. It is an acknowledgment of the purchase at specified prices, which is assented to by the *Page 340 plaintiffs in receiving the paper. It contains the agreement by implication to deliver at St. Louis and an agreement that payment shall be made in Gov. Robinson's vouchers. (Buswell v.Poineer, 37 N.Y., 312; Filkins v. Whyland, 24 N.Y., 338.) It is simply an agreement to purchase the goods and to pay for them in the obligations or certificates or warrants of another party. This is a valid contract, binding on the seller who enters into it, and imposing no personal liability on the buyer further than to deliver the stipulated obligations of the third party. These the seller takes and holds at his own risk. If they do not produce the full amount expected, it is the loss of the seller and not the buyer. This well settled principle of law the plaintiffs' counsel now expressly concedes. He says, however, that the debtor cannot discharge his liability by his own checks, notes or mere paper devices, unless they are good for what they profess to be, no matter how strong a receipt he persuades his creditor into giving. To this effect he cites Hill v. Beebee (3 Kern., 556); Higby v. New York (3 Bosw., 497);Hendrickson v. Beers (3 id., 639). This qualification is not applicable to the present case. As I read the contract, there never was any liability of the defendants to be discharged, except that of procuring the vouchers. They never agreed themselves to pay for the goods. If they had I agree that their own checks, notes or paper devices, could never discharge them. The legal effect of this contract would have been no different if it had made the sum payable upon the receipt of the personal obligations of Gov. Robinson, and had read "We agree to deliver to said Wise Arnold, the notes of Gov. Robinson (on demand or at twelve months) for the amount of said goods." The liability of the defendants would have been discharged upon procuring and delivering the genuine notes of Gov. Robinson, to the amount of the goods. The risk of payment would belong entirely to the seller. Suppose the agreement on the part of the defendants had been to deliver the bonds of the State of Kansas or of the United *Page 341 States to the amount of the goods, would there have been a pretence that the defendants would be liable for their ultimate payment? Yet the genuine voucher of Gov. Robinson's quartermaster, free from fraud in the manner of its being obtained, is in law and in fact, as complete an obligation against these governments (whichever he represented) as their formal bond. He and his quartermaster were the recognized agents of the government to receive the military stores needed by them, and to issue certificates of indebtedness to the parties furnishing them. True there is no mode of compelling payment, if the government refuse to make it or insist upon a deduction; nor is there in any case where the government gives its direct obligation. It is a simple transaction of faith and confidence between the government and its citizens. The finding of the referee that the vouchers were not delivered in payment of the plaintiff's demand, is in direct contradiction to all the testimony, including that of the plaintiff Wise. Neither is there testimony on which it can reasonably be found that the defendants on their own account received the proceeds of the vouchers from the government and paid them over to the plaintiffs. The vouchers were never claimed by either party to belong to the defendants after the delivery to the plaintiffs. The former were evidently desirous to render all the aid in their power to enable the plaintiffs to realize all their money. This is all the testimony shows. I do not think it important to allude to the proposition, that, if this writing be not a binding contract, then the defendants were at liberty to show by parol, as they offered to do, what the actual agreement was. I prefer to place my judgment upon the precise point that the writing constituted a contract between the parties; that the defendants performed it on their part by procuring and delivering the vouchers as agreed, and that there is not the slightest evidence of fraud on the part of the defendants or the military authorities. This relieves the defendants from *Page 342 further liability and the securities received are at the risk of the plaintiffs. Judgment should be reversed and a new trial ordered.