Persons v. McKibben

Stuart, J. Debt by Persons against McKibben, on the following sealed note: “ $325. On or before the first day of March next, for value received, I promise to pay John L. Persons three hundred and twenty-five dollars, which is to be paid to Jonathan Beasley, or credited on said Beasley’s note which I now hold. As witness my hand and seal, November 16, 1847. Thomas McKibben, [seal].” Underneath was this memorandum: “If the aforesaid Beasley does not complete a certain job of work according to a plan submitted to him by John L. Persons, then said McKibben is bound to said Persons for the above note. As witness my hand and seal, November 16, 1847. Thomas McKibben, [seal].” The pleader avers that the job of work referred to in the writing obligatory, was digging a mill-race and excavating a tunnel, according to certain plans and specifications submitted by Persons to Beasley; that a reasonable time had elapsed for completing the work, yet that meanwhile Beasley had died, leaving the work unfinished. The pleadings, modeled on the old system, extend to rejoinders and surrejoinders. As the demurrers filed do not remain for decision, no question is raised on the sufficiency of the pleadings. [262] The issues were submitted to a jury. Verdict and judgment for McKibben for 123 dollars and 50 cents. The evidence is made part of the record in the proper mode. Persons brings the case to this Court. In his defence McKibben claimed the value of the work done by Beasley on the mill-race; also three notes made by Persons and assigned by the payees to McKibben. On these claims the judgment in favor of the latter over and above the sealed note is predicated. The main question presented relates to the work of Beasley. Before discussing that, it will be proper to dispose of the questions arising out of the other parts of the defence. McKibben, as the assignee of Baxter, held a note against Persons. The assignment was denied under oath. It seems this note had been placed in the hands of Welty, an attorney, &c., for collection. Welty assigned it to McKibben thus: “J. S. Baxter by D. Welty.” To prove the assignment, Baxter was introduced. He testified that Welty was authorized to collect, but not to transfer the note; that when witness first heard of the assignment, he refused to ratify it; but that afterwards, at the instance of McKibben, it was ratified; and that the indorsement was in the handwriting of Welty. The note was assigned March 9, 1849; this suit was commenced March 17, 1849; and the ratification was in May or June following. This is sufficient to entitle McKibben to the benefit of the set-off. The ratification related back to the time of the assignment, and necessarily included the act of Welty, with all its circumstances and incidents. Until plea pleaded denying the assignment under oath, the note was prima facie a good set-off in the hands of McKibben, and but for that plea, would have remained good. The plea merely put upon McKibben the proof of the assignment, and did not change his rights or relative position to Baxter or Persons. The note, with the assignment thus ratified, was properly admitted. The next question relates to the lies note, payable in [263] lumber or sawing. It was the joint and several note of Persons and one Mondy. The evidence of Bes, the payee, tended to prove that he had made demand of Persons, one of the makers of the note. Mondy was offered as a witness to prove that there had been no demand. The record shows he was objected to and the objection sustained. The evidence, at best, must have been of the feeblest character; no less than fifty men in the court-house could have testified, namely, that they knew of no such demand. Still, whatever it was worth, the party, within reasonable limits, had a right to introduce even negative evidence. But even if the lies note be excluded, then taking the other matters of set-off at such estimates as the jury were at liberty from the evidence to place upon them, and the verdict is still substantially sustained. In such cases the judgment will not be reversed. Parker v. The State, 8 Blackf. 292. The note in suit was primarily payable in Beasley's work. The only remaining question is, whether, since the mill-race was not completed, Persons was liable for the value of what had been done by Beasley, It has been often held by this Court, that he who is benefited by the labor or property of another must answer for it on an implied assumpsit. 7 Blackf. 599. In Coe v. Smith, administrator, 4 Ind. R. 79, the authorities were collected and reviewed. There is a case in the Massachusetts reports very similar in many respects to this. Fuller agreed to work for Brown, and give him four weeks’ notice before quitting his employ. He rendered valuable services, and left without notice, in consequence of sickness. It was held that Fuller was entitled to a reasonable compensation for the services he had rendered. Fuller v. Brown, 11 Metc. 440. The case in 21 Verm. 301, to which counsel for Persons have referred us, is in conflict with the repeated adjudications of this Court, and with the numerous authorities cited to sustain them. We think the law clearly with McKibben. J. P. Usher, for the plaintiff. S. B. Gookins, for the defendant. Per Curiam. — The judgment is affirmed, with 5 per cent, damages and costs.