McKernan v. Mayhew

Perkins, J. The record makes the following case: John Cain, Esq., of Indianapolis, was in debt. His son, Andrew Jackson Cam desired to relieve bis father of his indebtedness; and, being possessed of some claims upon the — 293 — Government, growing out of the Indian wars in Oregon and Washington Territories, he did, on the 30th of March, 1857, deposit with James H. MeKernan, of Indianapolis, some amount of those claims, which appear to have been transferred to him by Sellers and Friendly, one of which claims was for 1,165 dollars, and, at the same time, gave Mr. MeKernan a letter of instruction, as follows. After reciting his desire to aid his father, &c., he says: “If such parties, [creditors of his father] as I shall designate will surrender their claims, in lieu thereof, wait the payment of the war bond by the Government, and now in your possession, I will allow them principal and interest to date. If this arrangement does not suit the parties that I will designate, you will please enclose the bond to me, at Madison, Indiana, Very respectfully, yours, March 30, 1857. A. J. Gain. J. H. McKernan, Esq., Indianapolis, Ind." What designation of creditors, or further instructions, if any, were made or given by A. J. Cain, do not appear from the record. But it does appear, that, on the 3d of April, 1857, four days after the deposit of the claims by A. J. Gain, creditors began to file their demands, against John Gain, with Mr. McKernan. A list of them appears in the record. Seven creditors appear to have filed on the 3d of April, and, on that day, MeKernan executed to Thomas M. Smith, who filed the first three claims, an instrument of the following tenor: “Received, Indianapolis, April 3d, 1857, of Thomas M. Smith, two notes as follows: “ $100. Indianapolis, January 14, 1852. “ Sixty days after date, I promise to pay to the order of Thomas M. Smith'Son, 100 dollars, value received, negotia — 294 — ble and payable at the branch at Indianapolis, of the State Bank of Indiana, without any relief from the valuation or appraisement laws. John Cain.” “ Indianapolis, January 14, 1852. “ One day after date, for value received, I promise to pay to Thomas M. Smith, or order, 45 dollars and 57 cents, without any relief whatever from valuation or appraisement laws. “$45 57. John Cain.” “Also, an account of William Smith — amount, 29 dollars and 50 cents.” “ W. H. Talbott v. Thomas M. Smith, as indorser of John Cain. ) In the Marion Circuit Court, Indianapolis, October 20th, 1852. Amount of judgment......................................... $454 28 Interest 4 years, five months, 8 days...................... 120 92 Costs accrued................................................... 9 23 $584 43 “The first note, principal, 100 dollars, and interest of 30 dollars and 53 cents, and second note of 45 dollars and 57 cents, with interest, 17 dollars and 60 cents; the account of William Smith, of 29 dollars and 50 cents, and the above judgment to be paid out of the proceeds of an account of Sellers and Friendly, of Oregon Territory, for 1,165 dollars, for goods furnished the Government, for the use of the Oregon volunteers in the Jakina Indian war, when collected by the undersigned, wbo holds a power of attorney for that purpose. “ J. H. McKernan.” The filing of claims continued. By the 1st of February, 1858, twenty-five claims, amounting to 5,126 dollars and 50 cents, had been placed in the hands of McKernan. Between — 295 — the 1st of February and the 8th of December, 1858, thirty-one more claims were filed, amounting to 2,382 dollars. This division of the list of claims is prefaced thus: “To come out of the next bond.” Between the 8th of December, 1858, and the 23d of September, 1859, eighteen more claims were filed, amounting to 1,845 dollars and 85 cents. This third division of the list of claim is prefaced thus: “ To come out of next bond.” It thus appears that the aggregate of claims upon John Gain, filed with MeKernan, was 9,354 dollars and 35 cents. The record is not explicit as to the amount of war claims deposited with him by Andrew Jackson Gain. The amount he deposited on the 30th of March, 1857, is not stated. On the 5th of August, 1857, he made a second deposit of 2,382 dollars, and, on the 29th of June, 1859, he made a third deposit of 1,698 dollars; and it is clear, from the record, that he deposited, in all, over 7,500 dollars, but as to the exact amount, the record does not show very satisfactorily. These claims, at the time of their deposit, had not been allowed by the Government, but might be subsequently, in whole or in part, and some of them in greater proportion than others. In what terms certificates were given by Mr. McKernan to creditors, other than as set out above, does not appear; nor does anything further appear as to his powers in the premises. It appears that McKernan received, in gold, upon the 1,165 dollar claim, mentioned in the instrument given to Smith, 776 dollars and 67 cents, and that he received, upon all the claims deposited wdth him, 4,791 dollars and 32 cents, but when he received the amounts does not appear, nor whether he is yet to receive a further sum upon them or not. It appears that a greater proportion of some than of other of the claims had been paid, but why is not disclosed. The instrument above set out, given by McKernan to Smith, was assigned by the latter to Mayhew, accompanied by an — 296 — order on McKernan to pay the amounts due upon it to Mayhew. Mayhew brought this suit, upon that instrument, against McKernan, to recover the amount he had received on the 1,165 dollar claim, mentioned in it, and he recovered below. The instrument was assignable in equity, so that the assignee could sue upon it, in his own name, under the code. It may be observed, also, that an order, drawn upon a particular fund, amounts to an equitable assignment of such fund, or the amount of it specified in the order. Byles on Bills, side p. 74, note to 3d Am. ed. It may be further observed, that, if a demand was necessary before suit, which we do not mean to intimate, a demand was made; and, as the suit is upon the instrument, not upon the order, it was not necessary to show an acceptance of the order. The proper parties, we may also remark, are before the Court. The present suit was brought by Mayhew, on the instrument given by McKernan to Smith, alleging the reception by the latter of the money on the 1,165 dollar claim, specified in it. One paragraph of McKernan’s answer was this: “That so far as the claim, set forth in the complaint, is now made by the plaintiff, the writing or agreement described in the complaint was given without any consideration whatever.” This paragraph was rightly held bad on demurrer. It does not deny that the instrument was given upon a consideration to Smith. It is a sort of negative pregnant. Indeed, it is scarcely intelligible as to any meaning. It says, that so far as the plaintiff’s claim is ‘‘now made,” it is without consideration, It would seem that the instrument must have — 297 — been given upon a consideration or not, whether sued on now or then. But the main question in the cause arises thus: The instrument given by McKernan, on which the suit is founded, after acknowledging the reception of the claims filed, states that the claims specified are “to be paid out of the proceeds Of an account of Sellers and Friendly, of Oregon Territory, for 1,165 dollars, for goods furnished the Government, for the use of the Oregon volunteers,” &c., and is signed J. H. McKernan, not as agent for any other party, but simply in his own name. A receipt, it may be remarked, may, in addition to its character as receipt, contain an agreement. Pribble v. Kent, 10 Ind. 325. McKernan claims, that, notwithstanding his agreement states that the payment to Smith, Mayhew’s assignor, was to come out of a' particular, specified war bond or account, he is entitled to aver in answer, and show by evidence, that it was not the understanding that it was to come out of that specified bond, but, yro rata, with all J. Cain’s creditors, out of the aggregate amount which might be collected on all the bonds deposited, at the time the receipt was given and afterwards, with him by A. J. Cain. The importance of this question to the parties will be understood by a reference back to the account of the claims deposited by A. J. Cain with McKernan. We think evidence could not be heard to prove such an understanding. The written agreement in question is as clear and explicit as words can make it. It is without ambiguity, and needs nothing extrinsic to aid its interpretation. It is not like the contract in a case cited, where a person acknowledges the receipt of. goods or merchandise, “ to be forwarded.” Such a contract is ambiguous, and needs to be read in the light of extrinsic, surrounding facts, to arrive at-its meaning. Eorwarded — when, where, how, in what capacity, &c.? Thomas A. Hendricks, for the appellant. N. B. Taylor and Barbour & Howland, for the appellees. In the case at bar, McKeman has in possession, and in expectation, several war bonds, not yet allowed by the Government, with a contingency existing as to whether they will be, oi’, if any of them, which, and how much thereof, which claims he is to collect, as far as can be done, and pay the proceeds to J. Cain’s creditors. The thing is in his hands. A creditor comes - in to deposit his claim. Mr. McKeman can say to him, I will give you an obligation to pay you your pro rata proportion out of what I collect on all the claims, less the expense of collecting, &c. Or he might say to him, and to such an agreement he might personally bind himself, if you will agree to take your chance for pay out of a certain specified bond, thereby relinquishing all right in the others, I will agree to pay you all I collect, up to the amount of your claim, out of that bond. ' If the agreement was made, it would be binding. Such is the agreement in question, in this case, on its face, and we think it can not be varied by parol evidence. See Byles on Bills, supra, side p. 27. If this contract can be varied by parol evidence, what is the contract that can not be? If an agent contract, upon a consideration, in his own name, even beyond his powers as agent, he may bind himself. Ibid. And see Kendall et al. v. Morton, at this term. Per Curiam. — The judgment is affirmed, with costs, and 1 per cent. damages.