Hunt v. Pierpont

Hinman, J. This is a motion in error from the judgment of the superior court. The original action was book debt, and one item of the account for which the plaintiff recovered was for a due bill originally given to the plaintiff and one Phelps as partners. Phelps had transferred all his interest in it to the plaintiff, who thus became its sole owner, and on the 21st of March, 1857, he delivered it to the defendant, under an agreement that it should be charged on book, which was accordingly done. Money, bills of exchange, orders, bank checks, and promissory notes, when assigned, are, says Judge Swift, (1 Big., 582,) charged on book, in the regular course of business. And we believe our practice for a great many years to have been uniform, and in conformity to this remark. But we see no substantial difference in prin» ciple, in respect to the right to charge on book, between a due bill and a note or order. All these instruments are evidences of debt, and the fact that some of them contain an express promise to pay does not distinguish them in principle from instruments which raise a promise by implication. The fact that the due bill was originally due to the plaintiff and another, and that, had a suit been brought on it, it must have been brought in the names of the parties to whom it was payable, does not alter the case. In this respect it was like a non-negotiable note in the hands of an assignee. He could only sue it in the name of the promisee, but the surrendering it to the maker on his promise to pay the amount, or on an agreement to charge it on book, would give a right of action to the assignee in his own name. 1 Swift Big., 438. Virtually, such assignee is a purchaser of the note. But the note being only the evidence of indebtedness to the payee, be is, therefore, virtually the purchaser, not of the paper merely, but of the debt evidenced by it, as is also the purchaser or [306] assignee of any other non-negotiable security. Wilton v. Scott, 4 Conn., 527. As such purchaser of this due bill, the defendant was fairly indebted to the plaintiff for the amount due upon it. The sale and delivery of it to the defendant operated as payment, or to extinguish it as a subsisting debt to Phelps and Hunt, and this of course was a good consideration, either for an express promise to pay the amount to the plaintiff, or for an agreement that it should be charged on book. We are satisfied, therefore, that .the court decided correctly on this point. While Phelps and Hunt were in partnership they sold certain machinery to the defendant, and a portion of the plaintiff’s account was for work afterwards done with this machinery. There was no fraud and no warranty of the machinery on this sale, and it was sold for less than the cost of good machinery, of that description. The plaintiff however had represented that it would make good work; still, the work for which he claimed to recover was defective, and not readily saleable in the market, which was in part owing to the nature of the machinery, and in part to the plaintiff’s negligent workmanship. A deduction was made for the plaintiff’s negligent workmanship, but none on account of the character of the machinery. We think this was correct. Any claim of the defendant growing out of the purchase of this machinery must have been against both Phelps and Hunt, and therefore not the subject of set-off against Hunt alone; and being, moreover, for unliquidated damages entirely, was not the subject of a charge on book. But the machinery was the defendant’s. The finding that there was no fraud, and no warranty on the sale of it, puts this point beyond dispute. The goods then, being manufactured for the defendant, by means of machinery furnished by him, he alone must suffer for any failure in it to make good work. The law will not notice any words of commendation, not amounting to fraud or warranty, which the plaintiff used in order to effect a sale of it. As such words lay no foundation for an action, so they can not amount to a defense to an action; and it can make no difference, in this respect, that the [307] plaintiff’s claim is for work done with this machinery. If the plaintiff knew the character of the machinery and did not inform his employer of it, that, under some circumstances, might amount to negligence in the performance of the work; but any claim growing out of unskillful or negligent workmanship was considered by the auditor, and allowed in reduction of the amount which otherwise the plaintiff would have been entitled to recover, under the contract, as the stipulated price for the work performed. We. think this all that the defendant had a right to claim, and we do not, therefore, find any error in the judgment complained of. In this opinion the other judges concurred. Judgment affirmed.