Eastman v. Bennett

By the Court, Cold, J. We are of the opinion that the- judg-mentinthis case should be affirmed. We cannot believe thátthe mistake of the name of the witness to be examined, which occurred in the notice served upon the attorneys of the plaintiff in error, could have possibly misled them. The name of the witness was correctly given in the interrogatories and rule served with the notice; and we suppose the notice itself was unnecessary under our practice. Neither do we discover any valid objection to the admission of the deposition of John E. Clarke. The communications between the plaintiff below and Eastman, before the sale of the goods to A. H. Clark, relating to that transaction, and the negotiations between them and said Clark, at the time of sale, wore all calculated to explain the nature of the sale, [240] and tlae person to whom credit was given, and were, therefore, we think, proper and competent evidence. They were a part of the res gestae. That part of his deposition relating to the contents of the letters which had been sent by the plaintiffs to Eastman, became evidence alter notice had been given Eastman to produce the originals and he had failed to do it. We do not appreciate the objection taken to the deposition upon the ground that it was not competent to prove the contents of the letters at the time the deposition was taken, because Eastman had not then failed or declined to produce the originals. The plaintiffs deemed it necessary to their case to show the contents of these letters — they served a notice upon Eastman to produce them at the trial, and when he declined to produce them, they were at liberty to prove their contents by any competent witness. If the witness had been in court at the time of trial, he would have been put upon the stand to prove them; but being a foreign witness, his deposition was taken for that purpose. The deposition was taken conditionally, only to be used in the event the originals were not produced in court. And we think that the deposition shows that the original letters, copies of which were given in evidence, were in the possession of Eastman. The question raised in respect to the variance between the letter of guaranty declared on and the one offered in evidence, is one not free from difficulty. The pleader attempted to set out the letter in liis declaration in haee verba, but in describing the letter omitted the word “ may,” which was in the original. The omission, however, of the auxiliary verb “ may ” does not in any manner change the sense or vary the meaning of the letter of guarantee, and we have therefore come to the conclusion that the variance was immaterial, and should be disregarded. We are aware that there is very high authority for the doctrine that when a party undertakes to set forth a written instrument by its tenor, or in haec verba his proof and aver-ments must strictly correspond; and that if in the recital, he varies in a word or letter, so as thereby to create a different word, it has been held a fatal variance. But there has been a [241] tendency for some years to relax the rule somewhat and to disregard those slight variances which could not possibly mislead or surprise the opposite party. The cases upon this point have been collated and ably commented upon in note 376, 1st part Cowen & Hill’s Notes to Phil. Ev. That note can be consulted for the leading cases upon this subject. We do not apprehend that the defendant below was, or could have been misled or surprised by the variance between the language of the letter declared on and the one offered in "evidence.' When substantial justice has been done between the parties, it seems unreasonable to adhere too strictly to a nice rule of law to defeat it. But the most rigid rule would not exclude the evidence of the judgment against A. H. Clark in favor of Bennett, White & Co., for the reason that the plaintiffs had described it in their declaration as a judgment in favor of Bennett, White & Company. Whatever doubt there may exist as to the materiality of the variance in the letter of guaranty, there can be none that in the latter case it was immaterial. But it is insisted that this action could not be maintained for the reason that no sufficient consideration appeared in the letter to support the contract of guaranty, and that the court improperly denied the motion for a non-suit. The letter of guaranty was in the following words : “ Fond Du Lae, Wis., Sept. 22d, 1854. “ Messrs. Bennett, White & Co., ) Quiucy Market, Boston. j “ Sirs: — Mr. A. II. Clark, of this place, will purchase a “small stock of cloths and clothing of you, which I hope you “will sell to him cheap, and I have no doubt he will make you “a valuable customer. I hereby guaranty the collection of “any amount which you may credit him with, not exceeding “two thousand dollars.” Now we are clearly of the opinion that a good and sufficient consideration for the undertaking of Eastman appears upon the face of this letter. In consideration of the plaintiffs’ selling Clark two thousand dolíais worth of goods upon credit, lie agrees and promises to become responsible for the collection of [242] tliat amount. That such a contract of guaranty is valid and binding has been held in many similar cases. See 8 J. R. 35; 11 Id. 221; 10 Wend. 218; 13 Id. 114; 12 Id. 520; 24 Id. 35; 4 Hill, 200; 4 Denio, 559; 3 Cow. R. 204; 1 Ad. and E., 57; 5 Bligh’s ch. 1; 7 M. and W. 410; 9 East, 348; 1 Cowp. 242; 3 B. and B. 211; 4 C. and P. 59; 8 D. and R. 62; and we are not aware of any decision of this court which conflicts with these authorities. “ There is a wide difference” — says one of the cases — “ between the guaranty of an existing debt and the guaranty of a debt to be contracted upon the credit of guaranty.” And it is this distinction which renders this case so clearly distinguishable from Taylor et al. vs. Pratt, 3 Wis. 674. It appears from the correspondence between the parties that the plaintiffs agreed to sell the goods to Clark upon credit, on condition that the defendant would guaranty the debt. The goods were really sold upon the faith and credit of this contract of guaranty, and the consideration appearing upon the face of the letter is sufficient to support the contract. It was farther insisted that the court should have nonsuited the plaintiffs for the reason that there was no evidence that they had ever given the defendant notice that they had accepted his guaranty, and acted upon it. If such a notice were necessary to fix the liability of the defendant (a question which we are not called upon in this case to decide) we think that it appears from the proof that it was given, and that the jury from the evidence would have been authorized in thus finding. Immediately after the sale of the goods to Clark, the plaintiffs mailed the letter of Oct. 6, 1851, directed to the defendant at Pond du Lac, advising him that they had acted upon his letter of guaranty. We presume the defendant received this letter by due course of mail. For he admitted to the sheriff, when called upon and notified by him that ho had an execution against Clark for these goods, that he, Eastman, held a chattel mortgage on the goods in Clark’s store to secure him against the amount of the execution; that he considered himself responsible, and that the plaintiffs would got their pay when the time came. Certainly these admissions and declarations fully justify the presumption^ [243] tliat be knew tbe goods bad been purchased upon tbe credit of bis guaranty. Tbe plaintiffs bad prosecuted tbeir action against A. II. Clark to judgment, and tbe sheriff bad returned upon tbe execution issued .upon this judgment, “No property-found.” Tbe defendant below called" tbe sheriff as a witness, and offered to prove by him, that at tbe time tbe execution came into bis bands, and was returned by him, Clark bad sufficient property to satisfy tbe execution. Tbe testimony was objected to, and we think properly excluded by tbe court. If an officer were permitted to falsify and impeach bis returns there would be no confidence in them, and a party would never know what steps to take upon them. They ought not to be open to attack in this manner. If false, tbe party injured has bis remedy by action against tbe sheriff, for making a false return. See following authorities: Cro. Eliz. 872; Gardinier vs. Hosmer, 6 Mon. 325, and cases in tbe notes of Gwynn on Sheriffs, page 473, et seq. Tbe judgment of tbe court below is affirmed with costs.