McCulloch v. McKee

The opinion of the court was delivered June 12, by Chambers, J. On the trial of this cause, the defendant offered to prove that the single bill of defendant given in evidence was in consideration of the indebtedness of the defendant- to Lewis Carpenter, and that it was given under an arrangement between McCulloch and the defendant, that McCulloch would pay the money for the defendant to Carpenter; but that he never paid said money, by which the consideration of the note failed. This was objected to, and the objection overruled — evidence admitted, and exception taken, which is now assigned for error. It is well settled in Pennsylvania that fraud or failure of consideration may be given in evidence, under the plea of payment with leave, &c., in an action on a note or bond: Baring v. Shippen, 2 Bin. 166; Stubbs v. King, 14 Ser. & R. 206. Evidence is received to prove that a bond was fraudulently obtained or that the consideration has failed: Carpenter v. Groff, 5 Ser. & R. 162; Geiger v. Cook, 3 W. & Ser. 266; Houk v. Foley, 2 Pa. Rep. 245. This jurisprudence is too well established in Pennsylvania as a part of our system of laws, to be departed from or influenced by the decisions on the subject in other States — and in the admission of the parol evidence offered there was no error. The other errors assigned to the charge of the court may be considered together. It appears from the evidence, which consisted of the admissions of McCulloch before the justice, that, he wras authorized by Carpenter to receive from McKee the amount of a note, or due-bill, held on him by Carpenter, which was given in 1837, for $39 — that McKee was scarce of money, and McCulloch agreed to satisfy the debt to Carpenter — that he, McCulloch, had money standing with General Miller, who was going to Gettysburg, where Carpenter then lived, and that he would get him, Miller, to pay the money to Carpenter. McCulloch said that Miller had seen Carpenter and had offered him the money, and that he refused to take it, but sent it back, and that he had sent the money a second time with General Miller, and that Miller could not find Carpenter. There was [293] no other consideration for the note, and no part of the money was paid by McCulloch to Carpenter, whose residence, at the trial, was unknown, and who had not been' heard of for many years. It was also in evidence that Carpenter had lived with McCulloch and went away in 1837, leaving with McCulloch the note of McKee, with directions to collect it and keep it until he called for it. In 1844 McKee executed to McCulloch a single bill, given in evidence, for the amount of his due-bill to Carpenter, payable ten days after date, and had delivered up to him the due bill, and the order of Lewis Carpenter without date, to D. J. McKee to pay the note to D. W. McCulloch. • McCulloch, as was admitted, was to pay Carpenter for McKee, which was not done. The court below, after stating the evidence and remarking on the consideration of the single bill being a proper subject of inquiry, through the medium of parol proof, further observe, “ that the authority of McCulloch was to collect the money ; but without authority and without the payment of the money, he undertook to release the debt and take a note to himself for it, to change Carpenter’s debtor from McKeé to himself, without his consent. His having done so would not change the relation of debtor and creditor between McKee and Carpenter, and the liability of the former to the latter to pay the money was not changed thereby.” The court also say, “Wehave only considered the case in this aspect, to enable us to answer the -plaintiff’s points, which he desired us to consider abstractly, for these facts do not constitute the whole case as exhibited by the testimony,” and added, “ It will be observed that the evidence which makes up the facts, consisted of the acknowledgments of the plaintiff as to what the consideration of the note was ; and it was a part of those acknowledgments, that after he had taken the note of defendant, he sent the money to Carpenter, who declined taking it, saying that he wanted Mr. McCulloch to keep it, as he then had no need of it. If this be the truth of the ease, of which the jury must judge, and there is as much evidence of it as of the other facts embraced in the conversations of McCulloch alluded to, then, by Carpenter’s consent, his debtor was changed, the arrangement of Mr. McColloch, by which he took the note, was ratified — he thereby became the debtor of Carpenter, and McKee was released. In this view of the case, the plaintiff is entitled to recover.” Taking the entire charge into consideration, we think it presented the case to the jury as favorably for plaintiff as he could require. The court, in the first part of their charge, instructed the jury that “the authority of McCulloch was to collect the money, but, without authority and without the payment of money, he undertook to release the debt and take a note to himself for it, to change Carpenter’s debtor from McKee to himself, without his consent.” [294] Carpenter’s authority by the order to McKee was to pay the money to McCulloch. McCulloch was a special agent to receive the money from McKee, and as such he had not authority to substitute any thing else for the money so as to discharge McKee. An agent specially employed to receive payment in money cannot vary from his authority in receiving a bill: 2 Lord Ray. 930; 2 Salk. 442; Hays & Wick v. Lynn, 7 Watts 524; Story on Agency 115, 451. It is true that if the article substituted is delivered over to the principal, and he agrees to it, or, when informed of it, he approves of or assents to it, it is a ratification of the act of the agent that will bind the principal. The court did submit to the jury the evidence, with the instruction that if the facts were as stated, of Carpenter sending back the money to McCulloch, with directions to him to keep it for him, that he had no need of it — the arrangement of Mr. McCulloch with McKee was ratified, and Mr. McCulloch became the debtor of Carpenter, and McKee was released. In this view of the case the plaintiff is entitled to recover, as McCulloch had commuted for the money without authority, and had not paid McKee according to his engagement, when he took to himself McKee’s note. The material inquiry was whether Carpenter had assented to the arrangement made by his agent, and dispensed with the payment over to him by McCulloch. This was matter of fact for the jury. The acknowledgments of McCulloch were to be taken entire as evidence. As an admission, it would not have been competent for the court to have received part and rejected part: the whole must be submitted to the jury. What credit is to be given to the whole or part, is a question for the consideration and discretion of a jury: 2 Stark. Ev. pl. 4, p. 49. The question arising on this admission, as to assent and ratification and the legal effect of it, was submitted fairly to the jury, and favorably to the plaintiff, and it was for their decision. The jury, as within their province, found for the defendant. As the plaintiff has failed to sustain the errors assigned, Judgment affirmed.