Ely v. James

Colt, J. An offer for a cargo of coal to be delivered at Portland, the defendants’ place of business, at a price named, was given by the defendants in Boston to a travelling agent of the plaintiffs, and forwarded by the latter by telegraph to the plaintiffs’ place of business in New York. The offer was accepted, and, on receipt of the coal at Portland, the defendants sent the note of G. B. James & Co. to the plaintiffs for the amount of the purchase, payable in four months to the plaintiffs’ order, inclosed in a letter, which stated that it was in settlement for the coal, and requested the return of the invoice receipted. The invoice was at once returned by the plaintiffs, receipted as paid by the note in question. The latter thereupon indorsed the note, had it discounted, and, upon failure of the makers, took it up at maturity. Soon after the defendants were notified that the plaintiffs intended to hold them for the price of the coal, and an offer was made to return the note to the defendants. The plaintiffs contend that the effect of taking the note of a third party was to be determined by the law of New York, and that, by the law of that state, the transaction between these parties did not amount to payment for the coal. In support of these propositions many instructions requested by the plaintiffs were refused, and some were given by the court which were perhaps not absolutely required by the state of the evidence. The evidence shows that the contract was for delivery in Portland. That was the defendants’ order by telegraph accepted by telegraph, without qualification or condition. The coal was shipped by the plaintiffs to that place on June 27, 1873, on a vessel procured for that purpose by them, and a [43] bill of sale of that date, stating the number of tons at the price offered, and reciting that it was to be “ delivered at Portland less freight,” with interest added for four months aad three days, was sent to the defendant. After the receipt of the coal, the defendants sent the note, which bore the date of the bill of sale, and was for the exact amount of the bill, with the interest added, and the plaintiffs returned the bill of sale with a receipt of payment by note written on it. There is nothing in the case to control or contradict this evidence of the contract of the parties as to the place of delivery. Until the coal was delivered in Portland, the contract of sale was executory and the property did not pass. It is equally plain and uncontradicted that the note, dated at and payable in Boston, was sent from that city to the plaintiffs in New York in settlement for the coal, and received without objection by them. The sale of the coal and the delivery of the note appear to have been parts of one transaction, taking effect as of the same date. The note conformed in amount, date and time of maturity to the requirements of the plaintiffs’ bill of sale. It was taken without the defendants’ indorsement and was made payable to the plaintiffs’ order. It was negotiated by the plaintiffs before maturity. There was evidence admitted, without objection, that the agent of the plaintiffs agreed beforehand to take this note in payment, but this evidence was contradicted and the authority of the agent to make the agreement denied. In all this, however, there was abundant evidence of an express agreement that the note should be deemed payment. Under such an agreement, it is immaterial whether the sale and taking of the note were separate transactions or not, and whether the transaction, in whole or in part, is governed by the law of New York. The instructions of the court, so far as they were unfavorable to the plaintiffs, were well adapted to the case, and are not open to the plaintiffs’ exceptions. The requests for specific instructions, which were presented before the judge’s charge, were all properly refused, part of them for the reasons above given, and part of them because they were based on the assumption of a fact which was in controversy, and took from the jury a question which it was for them to decide upon the evidence. [44] Of the several requests which were presented after the charge, the first and second were properly refused, because they disregarded the element of the conduct and declarations of the plaintiffs after receiving the order, which were evidence of a ratification of the agent’s acts from which, in connection with a former transaction, previous authority to the agent might be fairly inferred. It is a sufficient answer to the third and fourth that the ratification of the agent’s authority is sufficient so far as the defendants are concerned, if the plaintiffs accepted, without objection, what they had reasonable ground to believe was the result of his agency. Story on Agency, § 259. As to the fifth request: The rule in Massachusetts is that the giving of a negotiable promissory note is evidence of payment of a preexisting debt, and sufficient where there is nothing to defeat the inference, or show that such was not the intention of the parties. In the absence of evidence, the same rule must be held to prevail in Maine. In New York and some other states, to give it that effect, there must be some additional evidence that such was the intention. The Massachusetts rule was applied to the note of a third person given for a preexisting debt in Wiseman v. Lyman, 7 Mass. 286, and was recognized as so applicable in French v. Price, 24 Pick. 13, 21, and in Butts v. Dean, 2 Met. 76. It is too late for this court to change the rule. As to the sixth request: The fact, that the defendants paid he freight to Portland and were allowed for it, is a circumstance of trifling importance upon the question of delivery, which the judge was not required to rule upon. As to the remaining requests relating to the law of New York: The laws of another state must be proved as facts are proved; although the construction of the evidence admitted, when it consists of a single statute or judicial opinion, is, as in the case of other written documents, for the court. Kline v. Baker, 99 Mass. 253. The judge in this case instructed the jury that the official report of the case decided in New York was evidence of the law of that state, and that, in the absence of conflicting evidence, the law so proved was to be taken to be the law of New York at the present time. His further remark was not excepted to, and appears to have been intended to indicate [45] to the jury that, while it was for the court to construe the opinion, it was for the jury to determine the sufficiency of the evidence to prove that that opinion expressed the law of New York. All the requests for instructions were properly refused. A single exception to the admission of evidence remains. After the maturity of the note and after the plaintiffs had taken it up, the makers of the note were declared bankrupt. The defendants were permitted to prove, for the purpose of showing that the plaintiffs had treated the note as their own, and had accepted it in payment, that after this action was brought they had proved the note in their own name against the estate in bankruptcy. The evidence was competent. All that was done by the plaintiffs with the note, as well before as after action brought, was at least admissible, however much the weight of the evidence might be diminished by the suggestion that it was the duty of the plaintiffs as mere depositories to prove the note for the benefit of all parties interested. There was no request by the plaintiffs that this evidence should be limited or qualified by the judge. Exceptions overruled.