Straus, Hartman, Hofflin & Co. v. Beardsley

This action was brought upon an instrument of writing as (60) set out in the opinion, and upon the trial before a Justice of the Peace, the defendant pleaded general issue, statute of limitations, *Page 58 payment, according and satisfaction, and a want of notice and demand. Judgment was rendered for the plaintiffs, and the defendant appealed to the Superior Court. The case states: Upon the trial in the Court below, in order to repel the bar of the statute of limitations, the plaintiffs offered in evidence the record of an action brought upon the same bond, the summons in which was issued on 20 March, 1872, served on all the defendants, and that the said action was dismissed at March Term, 1874, for want of jurisdiction. The summons in the present action was issued on 31 December, 1874, and served on W. K. Delany, administrator of W. B. Eborn, and during the pendency of the action, Delaney died, and Beardsley was made a party defendant as administrator d. b. n. of Eborn. The plaintiffs offered in evidence the deposition of Stern Hartman, one of the plaintiffs, taken during the pendency of the original action by a commissioner of affidavits for North Carolina, in the city of Baltimore. Notice of taking the deposition was given to the attorney, who represented all the defendant, except the defendant administrator, whose attorney, before the date of the notice to take depositions, filed an answer for defendant administrator, and the other attorney also filed answers for the other defendants. The deposition was taken, sent to the clerk and opened in open Court. The defendants objected to the reading of the deposition upon the ground: 1. — That the deponent was a party plaintiff and incompetent because J. L. Paul, plaintiff's agent, was dead at the time the deposition was taken. 2. — That there was no notice of taking the same served on the representative of W. B. Eborn, or his attorney. 3. — That (61) the deposition was taken in another suit of which the Court had no jurisdiction. The objection was sustained and the plaintiffs excepted. The plaintiffs then offered the deposition of D. S. Stewart, taken by the commissioner as aforesaid, to which the defendants objected. Objection overruled. The deponent testified that in 1860-61, he was the shipping clerk of plaintiffs, and that the paper writing (sales and transactions between plaintiffs and Paul), is a bill of goods sold and delivered to James L. Paul, doing business at Greenville, N.C. at or about the dates as charged. Deponent attended to packing and shipping the goods. The account was just and correct, and prices the same as paid by other customers at the dates of sale. The plaintiffs further proved that Paul died insolvent in 1870, and that demand was made upon his administrator to pay the amount of the bill of goods. And demand was also made upon Delaney, administrator *Page 59 of Eborn, some time after the death of Paul, and before this action was brought. The defendants insisted that the plaintiffs could not recover: 1. — Because there was no evidence of the existence of any such firm as that of the plaintiff at the time the action was brought, and that it could only be maintained by the surviving member of the same. 2. — Because the terms of the guaranty were not complied with by the plaintiffs. 3. — Because the Guaranty of the defendants was to pay for such goods as plaintiffs might deliver to Paul as their agent, and the evidence was that the sale was an absolute one from plaintiffs to Paul; and the guaranty was not a continuing one, but confined to the first transaction between Paul and plaintiffs, and all goods obtained by Paul were paid for. 4. — Because there was no evidence that the paper writing declared on was accepted by plaintiffs and no notice was given to defendants by plaintiffs that plaintiffs intended to act under it; nor was notice given to the defendants of the sales made to Paul, or of the default of Paul until 1872. 5. — That plaintiffs' cause of action (62) is barred by the statute of limitations. His Honor being of opinion with defendants dismissed the action, and the plaintiffs appealed. This action was commenced on the 31st day of December, 1874, before a Justice of the Peace, and upon the following contract: "GREENVILLE, N.C. 1 August, 1860. "We, the undersigned, acknowledge ourselves indebted to the firm of Strauss, Hartman, Hofflin Co. in the sum of one hundred dollars each, for payment of which well and truly to be made, we bind ourselves, our executors, administrators and heirs. The condition of the above obligation is such that if the said firm of Strauss, Hartmann, Hofflin Co. shall furnish James L. Paul as agent for them, with goods for sale on commission or otherwise, and the said James L. Paul shall thereafter fully and fairly settle and account for the said goods, then the above obligation to be void; otherwise to be and remain in full force and effect." The contract is executed by W. B. Eborn, the defendant's intestate and fifteen other persons. The record of proceedings is very imperfect, but its omissions are *Page 60 supplied by the statements contained in the case sent up with it. The following defences are made to the action. (1) A general denial of liability on the contract. (2) The want of notice to the (63) intestate of the delivery of the goods to Paul, and of a demand of payment. (3) The bar of the statute of limitations. The action was brought against W. K. Delaney, the administrator of W. B. Eborn, who died pending the suit, and the present defendant as administratorde bonis non was substituted in his place. There was but one distinct exception of the plaintiffs taken at the trial, and this was to the rejection of the deposition of the plaintiff, Stern Hartman, offered in evidence. The deposition had been taken in a former action instituted in the Superior Court by the plaintiffs against the first administrator of the intestate, Eborn and others, who signed the contract, and was dismissed for want of jurisdiction. The evidence contained in the deposition is not set out, nor the purpose for which it was offered stated, and we are consequently unable to see that it was either relevant or competent, or that any injury resulted from its exclusion. It was the duty of the plaintiffs, as has repeatedly been decided, to show that the rejected evidence was competent and proper.Sutliff v. Lunsford, 30 N.C. 318; Whitesides v. Twitty, 30 N.C. 431. The exception must be overruled. The evidence given by the plaintiffs is set out in the case, and without finding any fact, the Judge who, under the agreement of parties was to find the facts, being of opinion that the plaintiffs could not recover, dismissed their action. But we are not informed upon what grounds the action is dismissed, nor which of the defendants' objections are deemed valid and fatal to the plaintiffs' recovery. We must, therefore, in reviewing the correctness of the ruling of the Court below, assume as proved, not only such facts as directly testified to, but such as may be reasonably inferred from the evidence. We will therefore consider the defences set up, and their sufficiency to warrant the judgment of the Court: 1. The statute of limitation is insisted on as a bar to the action: This defence is not tenable. The goods were delivered to Paul (64) in August, 1860, and afterwards. The first action, dismissed for want of jurisdiction, was commenced 20 March, 1872, and ended at March Term, 1874, of the Court. The present suit was instituted on 31 December, 1874. Excluding the interval during which the statute of limitations was suspended, three years had not elapsed from the delivery of the goods when suit was instituted, and the present action is brought within a year after the termination of the other. The *Page 61 plaintiffs are thus relieved from the effects of the lapse of time, and their claim protected. The judgment dismissing the action is in substance a nonsuit and must be attended with the same legal consequences; and a nonsuit though not within the very words of the act, has been held by express adjudication, and long uniform practice, to be within its scope and meaning. Rev. Code, ch. 65, sec. 8. Skillington v. Allison, 9 N.C. 347;Morrison v. Conelly, 13 N.C. 233. 2. The contracts is alleged to be one of guaranty, and to require notice of delivery of goods under it, in order to create a liability therefore: It is true in ordinary cases of guaranty, such as letters of credit, the guarantor can not be made responsible, for goods sold on the faith of it, unless notice is given him in a reasonable time, and [he] be thus afforded an opportunity of securing from the party to whom they are delivered an indemnity against loss to himself. But if the undertaking be to guaranty the contract which may be made, the obligation is not collateral and contingent, but absolute and unconditional and no notice is necessary.Williams v. Collins, 4 N.C. 382. Such in our opinion is the contract of the intestate. It is in the form of a penal bond, and lacks only one element, a seal, to make it such. The undertaking is to pay a certain sum, and by the terms of the condition it is discharged only when goods have been delivered under its provisions, by actual payment of the purchase price. If the goods are delivered, the contract is to pay for them, and a compliance with this condition is the (65) only means of discharging the obligation. It thus became the duty of the intestate and his associates to ascertain for themselves if the plaintiffs furnished goods to Paul, and that they were paid for, and no notice or demand was necessary to charge them with the debt. 3. The contract as construed by the defendant applies only to a delivery of goods to Paul, as agent of the plaintiffs, for sale on commission or other compensation, and is confirmed to a single transaction; and it is insisted that the dealings between these parties, as disclosed by the evidence and account exhibited, are those of vendor and vendee, and are outside the protection of the contract. If we admit this to be the true and proper meaning of the undertaking, and we are inclined to do so, we are not prepared to say it does not embrace the transactions now under investigation. The evidence shows a delivery of goods shortly after the contract was entered into, at different times and at specified prices, and the witness speaks of it as a sale. But the entry on the plaintiffs' books specifying the articles delivered, their dates and prices, would be similar in all probability, if they were transmitted to an agent for disposal, and is but a detailed *Page 62 memorial of the transaction. The terms and conditions on which the deliveries were made are not shown, not the true character of the dealings revealed in the evidence. In the absence therefore of any findings of fact by the Judge, we can not declare these dealings not embraced in the intestate's obligation. The facts should have been reported, as found by the Judge, and not meagre evidence set out instead, in order that we may properly apply the principles of law which control and govern them. In our opinion the obligation is not restricted to one act of delivery, but was intended to secure the plaintiff from loss in their successive dealings with Paul, and provide for them a continuing indemnity. (66) The cause must be remanded in order that the true character of the transaction, and the terms and conditions of which the plaintiffs delivered the goods may be ascertained, and the liability if any incurred by the intestate in regard to them, determined. The judgment below was erroneous and is reversed and the cause remanded. Let this be certified.