Snevely v. Jones

[435] The opinion of the court was delivered by Gibson, C. J. It is true that the contract of guaranty is conditional, and that it lies on the guarantee to show performance of the condition in the first instance, as a( part of his case; insomuch that if the scales hang equal, it will be the same as if there were no proof of it at all, because the onus lies upon him. But here, though there was no evidence of the time when he became the owner of the chose, and consequently no positive evidence that he attempted to collect it in a reasonable time afterwards, was there no natural presumption, or circumstantial evidence of it in the very nature of the case? These natural presumptions are nothing else than deductions from general experience; and they therefore belong to the class of circumstantial evidence. They are founded in an assumption of the fact, from its consistency with known principles of human conduct; such as that a man will not pay a debt before it is due; that he will not confess himself guilty when he is innocent; ancl that he is aware of'the natural consequences of his actions; with many others that are put as instances: to which I add the very natural presumption, that he is always ready to take those measures which are obviously necessary to the protection of his property or interests. The presumption that he is endowed with a competent share of sagacity to perceive those measures, is a reasonable one; and, that he is so true to the instinct of his nature as to pursue them, being perceived, is as much so. These are premises from which a lawyer might argue and a jury draw a conclusion of the fact. As a general rule, then, it may be assumed that a man has sagacity to perceive, and energy to execute, every measure which the preservation of his property may dictate. Indolence is indeed sometimes too strong for cupidity; but instances of it are very rare and to be viewed as exceptions. To apply this presumption, then, to the case under consideration, it must be assumed, in the absence of proof to the contrary, that the guarantee had not become the owner of the debt at any material distance of time anterior to his effort to collect it. From the very fact that a guaranty was exacted, we are bound to presume, that the insolvency of the debtor, if it did not already exist, was thought to be approaching; and we are bound to presume also, that the guarantee was acquainted with the law which .required him at his peril, to pursue with due diligence the means of recovery which the guarantor had put into his hands: whence an inference, that the time of transfer- immediately preceded the judgment and execution, the circumstances from which it was deducible, being at least sufficient to be left to the jury. The preceding remarks dispose of the first, second, and third exceptions; and the fourth is no better founded. What room has the defendant below to complain of an omission to charge, when it was not required, that the plaintiff was not entitled to recover, no evidence having been given of the insolvency of the maker when the bill fell due; or of due diligence to collect it; or of want of notice [436] of its non-payment; or of want of averment and proof of consideration for the transfer. These were points of defence which, if relied on as available, ought to have been explicitly made and submitted with a prayer for direction. But we know not that any thing else than the time of the assignment was in contest; and it would be unfair to raise a question of proof here, which was not raised below. In any view of the matter, the judge was not bound to notice a defect of evidence which had not been pointed out to him. In regard to the consideration of the transfer, it is enough that nothing is indispensable to a statement, which has not been made so by the statute which has substituted it for a declaration; and that requires no more to be specified than the date of the contract, and the amount supposed to be due by it. The terms must doubtless be set forth in an intelligible manner, for it would not else appear that there is an available cause of action; but performance of conditions precedent, and every thing beyond the defendant’s engagement to pay, may be omitted. All beside is to be shown by evidence; as was determined in Boyd v. Gordon, 6 Serg. & Rawle 53, and Reed v. Pedan, 6 Serg. & Rawle 263. But this part of the exception regards not the statement of the cause of action, for that is not a subject of direction, but a supposed want of due proof which, in the absence of a particular submission of it for the action of the court, is one which belonged to the jury. Judgment affirmed.