Creager v. Link

Le Grand, C. J., delivered the opinion of this court. This is an action on-a promissory note, instituted against the appellant, who pleaded non-assumpsit, and accord and satisfaction. There was no question as to the making-of the note; the whole defence rested on the’plea of accord and satisfaction. The facts which-it is important for us to notice may be stated thus: The appellant made his note in favor of the appellee, and failing to pay it at maturity, an action was instituted upon it, but before trial was had the parties made an arrangement, [265] by which the suit was entered “off" and “satisfied," and the aote, by order of the court, passed to the plaintiff in the action. The present action was subsequently brought on the same note. The only witness examined in this case was Daniel Etzler, who testified, that on the 5th day of November 1852, the plaintiff and defendant appeared before him, and agreed that a promissory note of that date, and a mortgage bill of sale to secure its payment, (which are set out in the record,) “should be deposited in the hands of the witness, and that the plaintiff should deliver to witness the promissory note in the declaration mentioned, and that said papers should be delivered to plaintiff by witness so soon as the plaintiff should deliver to witness said promissory note, and the witness should after-wards deliver up to defendant the said promissory note to be cancelled; That the said papers, the promissory note of the 5th of November 1852, and mortgage, were in f all satisfaction to plaintiff of the promissory note in the declaration mentioned; That the defendant did deliver said papers, note and mortgage to witness in conformity with said agreement, and that it was then agreed between the said parties, that the plaintiff should forthwith obtain said note in the declaration mentioned and deliver it to witness for the use of defendant; That every thing was done by defendant which, according to said agreement, he was to do, and that nothing remained to be done on either part, except the delivery by the plaintiff to the witness of the promissory note in the declaration mentioned; That according to said agreement, witness held said papers, note and mortgage for the use of plaintiff, and that it was the duty of witness, by said agreement, to deliver the same to plaintiff so soon as Ike' plaintiff should deliver to him the note in the declaration." After this evidence was given by the defendant, the plaintiff offered to prove by the same witness, “that the plaintiff called on witness with the promissory note in the declaration mentioned, and offered to deliver up the same to witness, and demanded from witness the delivery to him, the plaintiff, of the said note and mortgage, and that iviiness refused to deliver [266] the same to plaintiff, because witness had been forbidden, by the defendant to do so on a different occasion, and after the said papers had been placed in witness hands, as aforesaid, and that the said papers” were still in the possession of ihe witness. To the introduction of this- and similar testimony on the part of the plaintiff the defendant objected, and this objection constitutes the first and second exceptions. In the view we have of the case, it is unimportant we should decide whether or not the ruling in regard to this offer of the plaintiff was correct. On this state of facts several prayers were presented on behalf of the defendant, and one on the part of the plaintiff.. Those of the defendant were rejected, and that of the plaintiff granted. Without examining with particularity each of the propositions contained in these prayers, we will indicate the principles which, in our judgment, ought to have governed the decision of the case. There can be no doubt, we suppose, on the mind of any one- conversant with the facts of this case, that the defendant, in attempting to withdraw his authority to the witness, to say the least of it, was acting a part far from creditable to himself.. Whatever we may think of the morality of his conduct, the question before us for decision is one of power; that is to say:. Had he the right and power to divest the plaintiff of his rights under the contract? If he had not, then the note and mortgage in the possession of the depository are and were the property of the plaintiff, so soon as he tendered a compliance with the agreement, and he could' then and now maintaintrover for the note and mortgage, even if he could not have a decree in a court of equity for their delivery, in regard to which, however, we pronounce-no opinion. The only question involved in the case is one of agency; whether it was revocable or not at the discretion of the appellant? If it were not, then the plaintiff cannot recover in this action. The proof must determine the true character of the agency, which was created by the mutual understanding and [267] agreement of the parties. The vaínes; testifies, that the note ef the 5th of November and the mortgage were deposited with him, “in full satisfaction to plaintiff of the promissory note,” and also that they were delivered “for the use of plaintiff, and that it was the duty of witness by said agreement to deliver the same to plaintiff,” &c. Nothing could be more direct or less ambiguous than this testimony as to the character of the agreement, and we think the law in regard to it is equally clear and explicit. Justice Story, in his work on agency, after staling the general principle, that the principal has, in most cases, the right to determine or revoke the authority given to his agent at his own mere pleasure, proceeds to state some of the exceptions to the doctrine; and in section 465, soya: “If a broker should deliver money or goods to a bailee, to be delivered to a third person, he may countermand the order at any time before the delivery thereof to the third person, or his assent thereto. But after the third person has assented thereto, the bailment is not counter mandoble, if there is a valuable consideration for the bailment.” Again, in section 477, he remarks: “So a remittance to an agent of money or goods, to be delivered to a creditor in the discharge of his debt, is irrevocable, after the creditor has assented thereto and signified his assent to the agent” “The ground,” he continues, “of this doctrine is, that a party shall not be at: liberty to violate his own solemn engagement, or to vacate his own security by his wrongful act; for that would be to enable him to perpetrate a fraud upon innocent persons, who have placed implicit confidence in him, which is against the clearest principles of justice and equity.” Now in the case before us there can be no doubt of the assent of the plaintiff. It was coeval with the agreement itself, and from the moment when the latter was entered into, and the note and mortgage deposited with the witness, the defendant had no power of revocation. The authority to which we have referred is plain to this end. Holding these views of the facts and law applicable to tthemj [268] we are of opinion, that the note sued on in this action is the property of the defendant, and that he has sustained his plea of accord and satisfaction, and accordingly reverse the decision of the circuit court. ” We have indicated the remedy which is open to the plaintiff. Inasmuch as there can be no recovery on the note sued on in this case, we refuse a procedendo. Judgment reversed and procedendo refused.