Fridenberg v. Robinson

RANDALL, C. J., delivered the opinion of the court. The question first presenting itself in the record is, whether the demurrer to the second plea was properly sustained 'by the court. The plea alleges that after the plaintiff informed the defendant of his discharge as endorser of the draft in question, and in consideration of such discharge, he paid other demands held against him, which he did not consider himself legally bound to pay. This does not charge that the defendant was discharged by the plaintiff in consideration of the defendant’s paying the other demands or money, but _ merely that he voluntarily paid other debts, which he thought he was not bound to pay, because he was discharged from the demand in suit. In ®tber words, it alleges a reason which moved him to pay the — 139 — supposed doubtful liabilities, but not a consideration for Ms discharge. The appellant insists that the plaintiff was estopped by the admission, implied from the demurrer, of the facts alleged in their plea, “ and that the admission was inconsistent with the evidence proposed to be given, or to the clainf set up,” &c. But we are at a loss to discover the application of this doctrine of estoppel applied to this plea. It does not allege' that the subsequent claims so paid were not valid debts of the defendant, nor that the plaintiff induced him to pay such' doubtful demands by informing Mm of the discharge, or promising a discharge. The plea does not contain matter of equitable estoppel, or estoppel in pais, and is well met by a general demurrer. There is no pleadable fact alleged which is applicable to the cause of action. The demurrer, therefore, was well sustained. The first error assigned is that the court admitted testimony to prove a promise by defendant to pay the draft after he was discharged by the agreement between plaintiff and Gilchrist. This assumes that defendant had shown that he was dis- ' charged, the very point in issue to be decided by the jury/ The defendant had testified' that he deemed himself discharged upon the information given Mm by the plaintiff. The plaintiff, says he had not discharged defendant or told him he was discharged, and the evidence of a promise to pay, if such was given, was in corroboration of the plaintiff upon the issue of veracity between the parties. The suit was not . brought upon the new promise, but the promise may well", have been introduced as collateral evidence, touching the question of discharge, and it does not seem that such testimony was improper to be admitted. The second and third errors assigned are that the court erred in each subdivision of his charge to the jury, and in not malting his charge clear and intelligible. — 140 — Each paragraph of the charge was excepted to, as appears by the record. It cannot be expected that a charge required to be written by the Circuit Judge in the midst of the confusion of a contested trial will be as perfectly or logically framed as though it was prepared under more favorable circumstances. Hence in this, as in many cases, the charge is not framed with that precision which might be expected if time or opportunity had been had to perfect it. "We do not discover, however, that anything contained in the first three paragaaphs excepted to could have misled the jury. The fourth paragraph of the charge, however, may have influenced the jury unfavorably to the defendant. It is in these words: “ If you find that plaintiff did not authorize his agent to malee, the agreement, and that if agent paid over the amounts on his own responsibilily, it does not bind the plaintiff.” Now, it is well understood that an agent may exceed his authority, so that his principal will not be bound by his acts ; but if the principal afterwards acquiesce and accept .the results and benefits of the unauthorized act, having knowledge of the facts, the act of the agent becomes the act of the principal by such ratification. One of the matters in issue in the case at bar was whether a new and valid agreement was made by the plaintiff (or ratified by him,, and thus becoming his own act,) for the giving of time to'the acceptor without the knowledge and consent of the defendant; that time was so given for payment to the acceptor, and that before payment was made in full by the acceptor, and after the agreement was entered into, the acceptor became insolvent, by reason of which delay of the plaintiff the defendant is affected to his damage. This is a good plea in bar, and it is so conceded by the court in ’the first paragraph of the charge. If, then, the agent of the holder, without the consent of the endorser, made an agreement with the aceeptoi’, by which agreement, and resulting from it, the endorser has been embarrassed or has lost the means of indemnifying himself, — 141 — the acceptor becoming insolvent in the meantime, and the principal has ratified the agreement, directly or,-indirectly, without the consent of the endorser, it does “ bind the plaintiff” in his suit against the endorser. These matters of fact are for the jury to determine, and their field should not be so circumscribed as to confine their inquiry merely, upon this branch of the case, to, the original authority of the agent to enter into the agreement, and exclude the farther question as to the ratification by the plaintiff of the contract. We do not think the terms of the agreement are very clearly shown by the testimony contained in the record, and perhaps if the charge of the court had been more full and explicit, the result might have been the same; but because the jury may have been misled by the too brief and general charge in this particular, it is erroneous. Hilliard on New Trials, 45; 1 Cal. R. 353; 11 Pick. 140; 22 Texas, 708; 8 Georgia, 693. The law applicable to the case at bar, (as we understand the case,) is that laid down by writers. If, after a bill or note becomes due, the holder, for adequate consideration, agrees with the drawee of the bill or maker of the note to give him time for payment, without the concurrence of the other parties entitled to sue such drawee or maker, they will thereby, in general, be discharged from all liability, although the holder may have given notice of non-payment. Story on Prom. Notes. § 413, et seq.; Chitty on Bills, 408. And if without such a consideration he take iresk security, as a renewed bill, or .a cognovit or warrant of attorney, and also agrees to give time, he thereby discharges the drawee and endorser. It is said, however, that the merely taking fresh security payable at a future day, but without a bargain to give time, will not discharge its drawer, it appearing that the second security was taken only as a collateral. Story Prom. Notes, § 416; Chitty, 409 and cases cited. But it is admitted that the mere receiving further security, payable at a future day, would, in general, imply an engagement to wait till it be — 142 — comes due. There is no obligation of active diligence on the part of the holder to sue the acceptor or any other party, and he may be passive and forbear to sue as long as he chooses; but he must not so agree to give time to the acceptor as to preclude himself from suing him, and suspend his remedy against him in prejudice of the drawer and endorsers. Story Prom. Notes, §§ 414, 419 and cases cited. In Gould vs. Robson, 8 East, 576, the holder of a bill upon its-becoming due received part payment of the acceptor and took'a new bill from him at a future short date for the remainder, and agreed to keep the original bill in his hands as security. He now sued the defendant as endorser, and this was relied on as a defence. Lord Ellenborough said: “ How can a man be said not to be injured if his means of suing be abridged by the act of another ? If the plaintiffs, holders of 'the bill, had called immediately upon the defendant for payment as soon, as the bill was dishonored, they might immediately have sued the acceptor and the other parties on the bill. The holder has the dominion of the bill at the time; he may make what arrangements he pleases with the acceptor, but he does that at his peril. If he thereby alter the situation of any other party on the bill to the prejudice of that person, he cannot afterwards proceed against him. As to the taking part payment, no person can object to it, because it is in aid of all the others who are liable ; but here he did something more — he took a new bill from the acceptor and was to keep the original until the other was paid. This is an agreement that in the meantime the original bill should not be enforced ; such at least is the effect of the agreement, and therefore I think time was given.” The agreement to give time must be made with a party to the bill, or it will not operate .as a discharge of any. An agreement between the creditor and the principal debtor for delay, or otherwise changing the nature of the contract to the prejudice of the surety, in order to discharge-the latter, must be made upon 'sufficieut consideration, and — 143 — binding in law upon tbe parties. A mere agreement by the holder with the drawee for delay, without consideration, though without any communication with or assent of 41» endorser, will not discharge the latter after his responsibilitgv has been fixed by due notice of dishonor. McLemore vs. Powell, 12 Wheat. 554; Badnall vs. Samuel, 3 Price, 521; Eng. Exch. R. Vol. 1. So it seems that a surety will not be discharged by the agreement to give time, and thus rmy; the terms of the original promise, unless there be a consideration which will entitle the primary debtor to insist upon and enforce the agreement, and the agreement must also be made without the assent of the surety or endorser. Whether the holder of the draft in question made or assented to the agreement set up in this case; whether he received any consideration for such agreement; whether the defendant knew of or assented to the agreement if made; whether the agent who entered into it was authorized by the plaintiff to enter into it, or whether, for the purposes of procuring and enforcing the judgment taken in New York, and the terms agreed upon for the payment of it, the agent, there was the agent of the plaintiff or of the defendant, or of neither of them ; whether the agreement was at any time binding upon either party, are questions to be determined by the jury, under instructions from the court upon the law of the case. . The fourth error assigned is that the court erroneously instructed the jury at the request of plaintiff’s attorney, especially in giving the third and fifth subdivisions of the instructions asked for, and the fifth and sixth errors assigned relate to the refusal of the court to give all and each of the instructions prayed for by defendant’s counsel, (numbered 1-to 13.) The eighth assignment of error reads as .follows: The court erred in not declaring in writing his ruling upon the instructions asked for by the defendant -as presented, and in not marking them “ given ” or “ refused.” — 144 — . We are compelled to remark here that in reference to the several instructions presented in writing by the respective «counsel, if this record is perfect, the Circuit Judge failed to «observe the provisions of “ An' act to amend the several acts relating to judicial proceedings,” approved-January 3,1848, being Chapter 140 of the laws of 1847-8, Tlie second, ¡third and fourth sections read as follows : “Sec. 2. Upon the presentment to the said Judge, bv «either of the parties or their attorneys, of instructions in writing, on the point or points of law or- exceptions taken, -arising on the trial, it shall'be the duty of .the said judge to -declare, in writing, Ms ruling thereupon,, as Resented, and pronounce the same to the jury as given .or refused, “ Sec. 3. T-liat it shall be the duty of the said judge, in ■any case, when he shall refuse, to . give the instructions, or. any one of them prayed for, as prayed to .be given, to write out and declare to the jury by way of instructions his own ruling of law upon the point or points so raised or presented, all of which shall be in writing, and shall .be written out before the same are delivered. “ Sec. 4. That all instructions, as well those given as those denied, and also as well those prayed for by the parties as those declared by the said judge, shall be signed and sealed by the said judge, and form a part of the record in the case.” The certificate appended to the record- states that it is a true copy of the papers and records on file, &e. The body of the record shows that instructions (copied at length) were prayed by the counsel on both sides, and they are quite voluminous. Appended to many of them.in the bill of excepr tions is this entry : “ Befused as asked for, but read with the words within the brackets interlined. , To which refusal to give said instructions and to interlining the same, defendant then and there by his counsel excepts.” Upon several of the instructions prayed, there is no memorandum showing that they were noticed or ruled upon: at all by the judge. — 145 — The defendant excepts to the giving of several instructions asked by plaintiff’s counsel, but there is no memorandum of the judge showing whether any of them were given; and it does not appear that the judge signed and sealed the charge, or any of the instructions prayed with his ruling thereon. This law of 1848 means something or nothing. If the instructions here incorporated were presented in. writing to the judge, we are entitled to know what ruling was made thereon and what instructions were given thereon to the jury, and strictly we can properly know this only by the means provided by law. If they were not so presented, we cannot regard them, but they may be treated as inter-polations. The bill of exceptions as signed by the judge-shows that they were presented to him. The counsel and parties are interested in having the rulings of the court, as given, reviewed for the purpose of correcting material errors, and the Circuit Judge is required to write out his rulings upon each question presented, so that the exact ruling may be seen and that it may be known what portion of the paper presented is his ruling. The parties may justly complain if-this is omitted, and the counsel here insists upon the strict application of the law. The question was presented to the Circuit Court upon the motion for a new trial by the defendant, which motion was overruled, thus showing that the ■court did not deem it essential to comply with the statute .in question, and an exception was taken and noted in the record, so that the decision upon the point comes properly before the. court for review. Ye have on several occasions passed upon cases presented, where a similar omission appeared, but, except in a single instance, no question has been raised upon it. Rut we are met here by the objection, and can only obey the positive requirement of the statute. For these errors, apparent in the record, the judgment must be reversed and a new trial granted.