Shelton v. French

Butler, J. We discover no error in the rulings of the court below. 1. The plaintiff was not bound to assign a breach of the bond. He brought his action, as he well might, on the obligatory part, without noticing the condition. It was competent for the defendant to plead the common law general issue, or the statutory general issue, or performance generally. If he had pleaded performance the plaintiff would have been bound to assign the breach relied on. But the defendant chose to plead the general issue in the statutory form, and give notice of his intended defences. His notice was operative for the purpose of rendering his evidence admissible, but not for the purpose of imposing upon the plaintiff the duty of assigning any breach. The issues which the plaintiff was bound to prove were made by the plea, and that only. 2. Eor the same reason the non-suit was properly denied. The sole object and effect of the notice of performance, as of the other matters of defence, was to authorize the admission of evidence to prove them under the general issue, if the defendant thought proper to offer it. Such á notice gives the [496] defendant a privilege, and imposes no duty on the plaintiff. It is sufficient for him to prove the allegations of his declaration put in issue by the plea. 3. The contract specified in the condition of the bond was a sale. Title to personal property passes by delivery, and agreements to “ deliver ” import a delivery which is to pass the title, unless there is something in the character of the article or the attending circumstances to qualify the language. Here there is nothing to thus qualify it. 4. The court have found as a fact that the contract was not tainted with usury. That finding of fact is conclusive. If we thought it erroneous we could not review it. If the facts were such that the transaction must be holden usurious, as matter of law, we might revise the finding of the court on the point. But the facts found are not of that character. 5. The finding of the court in respect to damages was doubtless based on the fact that the defendant guaranteed the full payment of the principal and interest of the Mobile bond contracted for at maturity, as part of the contract, and it had matured before suit brought. If the contract was legal, and one of guaranty as. well as sale, there was no good reason to prevent a recovery of damages in the action for breach of the guaranty, as well as the value of the bond. Besides, the value of the Mobile bond to the plaintiff was the value of such a bond guaranteed by the defendant, and it was not for him to say it was not worth the face and interest to the plaintiff, for it was of the essence of the agreement that he should make it so. 6. The defendant was not entitled to the set-off claimed. The only pledge made of the collateral bond was in connection with a pledge of the bond on which this action was brought, and as an incident security. That was not, per se, a conversion. When the principal bond was redeemed the relative position of the parties was restored. The motion finds that the collateral is in the hands of the plaintiff, ready for delivery when the contract is fulfilled or this judgment satisfied, and a satisfaction will revest the title absolutely in the defendant. [497] 7. If the defendant is right in his claim that the court did not apply the coupons, collected on the collateral, in reduction of- damages, then a new trial should be advised, nisi the plaintiff will remit a corresponding amount of his damages; but as we understand the motion the amount received for the coupons was, in fact, deducted. A new trial is not advised. In this opinion the other judges concurred.