Garlick v. James

Thompson, Ch. J. delivered the opinion of the court. The plaintiff and one Murphy, being indebted to James & M‘Cabe, on a balance of account for merchandise, the plaintiff left with the defendant, as collateral security, a note drawn by Seth Garlick to him, for 600 dollars, dated the 1st of November, 1802. Some time in the year 1810, the defendant gave up the note to Seth Garlick for 300 dollars ; and this suit is brought to recover the difference between the amount of the note, and balance of accounts due to James <§• M‘Cabe. That the note thus deposited with the defendant is to be considered and treated as a pledge, cannot admit of a doubt. It was delivered, with a right to detain it as collateral security, for the balance due James <§* M‘Cabe. But the legal property did not pass. The general ownership remained with the plaintiff and the defendant only acquired a special property therein; and if so, he has clearly exceeded his authority, in disposing of it as he has done. In the very able and learned examination of the rights and duties of a pawnee, in the case of Cortelyou v. Lansing, (2 Caines’ Cases in Error, 201.) most of the law on the subject of pledges has been collected. And I believe it may be safely [150] affirmed, that no páse is. 69 be found, where the deposite , was for aa indefinite timé, as it was in the' case, before us, thattlie sale of disposition of the pledge by the pawnee, withVout"first . calling' iipoA the pawnór. to redeem^, has been held good. It may be said.here,-as was said in that .case, that it is unnecessary to decide in what manner this call is to be made, Or how the pledge is to be disposed, of: in case of tlie pawnor’s default to redeem; for in .this'case the pawnor was not called upon, in any manner Whatever, to redeem. It was urged, on the argument, that this' cquld not he done, because the plaintiff had absconded. If fiotihe to redeem could not have been given personally to the plaintiff, the disposition of the pledge; should have been' authorized and sanctioned by judicial pro* . ‘ The authority of the defendant, w:ith respect to the note, could extend no further than to receiving the money- due upon it, without first calling Upon-the plaintiff, in some way, to. re-' deem. . The money, When received, Would be a. substitute for the note, and to be held upon the saíne*terms, and subject to' the same rights-and duties as the noté. And'if the "defendant undertook -to compromise.with the drawer of tlie nóte, aiidreceived a Jess sum than was due, he did it at his peril, as he acted without authority.-, ■■■■•'. Althqughlt is admittedj iii; the case,; .that the defendant actéd in good faith, it is diffibiilt to discover the reason Of nis making:; the sacrifice he did, in accepting of less than one half the sum due upon the note;; for it is in proof, that the settlement was made ■ with ¡Seth: Gafliek, personally,, and that he was, at the7 time, abundantly able to pay the full amount of the note. It was urgedj on the part Of the defendant, that the plaintiff might still call upon Seth Gaflltk for. the balance, due .upon the note, as the. payment made by him being.for a less sum than was due, it would not operate ás. a discharge of the note. Admitting, this to be cOfrectj .it will not exonerate, the defendant, if be . • lias so.disposed of the pledge as to make himself responsible.. A party may have, two remedies for an injury, and may elect which to pursue.. In whatever light,: therefore, the. base is viewed,- the plaintiff is entitled-to recover, and .must have judgment for 525 dollars, being the difference between the amount of the note and [151] the balance of account due from Murphy & Garlick to James & M‘Cabe, according to the stipulation of the parties. Several other questions would appear to arise out of the case as presented to the court, but they were abandoned on the arguznent. Judgment for the plaintiff.