Jones v. Fennimore

Opinion by Greene, J. Assumpsit on a promissory note. The defendant, Fennimore, proved, on the trial below, that the note and other claims against him, were settled by assigning a judgment in his favor to one Fullerton, for the benefit of certain creditors, including the plaintiffs; and that the judgment was still held and controlled by said creditors. On the contrary, the plaintiffs not only showed themselves in possession of the note; but also that, about the time suit was commenced, the defendant proposed to pay the full amount of the note, upon certain terms, which were declined by plaintiff’s attorney. Upon this evidence the jury found a verdict for the defendant. After the jury had retired, and made up their verdict, and on having returned to deliver it to the court, the plaintiffs moved for a nonsuit, which was very properly overruled. The 18th section of the practice act, Rev. Stat., p. 472, pro145 tides that, “no plaintiff shall suffer a nonsuit on the trial, unless he does so before the jury retire from the bar.” This, connected Ayith the preceding portion of the section, clearly applies to the retiring of the jury to consider of their verdict. After they have made it up, and, perhaps, told the result of their deliberations to bystanders, it is too late for the plaintiff to avail himself of a nonsuit. By the common laAV practice, the plaintiff is entitled to a voluntary nonsuit, at any time before the jury actually deliver their verdict; but our statute limits that practice, and precludes the right after the jury retire from the bar to make up their verdict. Motions were made for a judgment, non obstante veredicto ; and also for a new trial, Avhich were respectively overruled, and judgment rendered according to the verdict. In deciding this case, it is unnecessary to enlarge upon the action of the court below, in declining to render judgment for the plaintiffs, notAvithstanding the verdict of the jury. Considering the defective character of the plea in avoidance, which appears to have been set up as an accord and satisfaction of the note, such a judgment might have been rendered with propriety ; but doubtless the legal rights of the parties in this case ' Avould have been better advanced by favoring the application for a neAY trial. From our view of the evidence, we think there are strong, probable grounds to believe, that the merits of the case have not been fully and fairly tried; and that a complete development of all the 'facts may produce a very different result. The law contemplates a full hearing and a fair trial to every man; and if, by any reasonable cause, a party has been unable to present the merits of his case to-the jury, it is but just that he should be granted another trial. In most cases, the question of granting a new trial is confined to the sound discretion of the court beloAv; but still, the decision upon such a question may become the subject of review and correction in this court; especially Avhen the reasons and evidence for a new trial appear of record, and come within the well recognized rules of law. [146] In this case, the judgment referred to in the evidence appears to have been assigned for the benefit of several creditors, as a collateral security to guaranty the payment of their demands against the defendant, but not as payment or satisfaction of those demands. But the jury evidently regarded the negotiation as an accord and satisfaction of the note. Had they been instructed in the law regulating accord and satisfaction, they might not have arrived at such a conclusion, in relation to the defendant’s discharge from liability. To constitute a legal bar to an action, the satisfaction must have been full, perfect, and complete. Clarke v. Hinsmore, 5 New Hamp., 136; Bump v. Phœnix, 6 Hill, 310. It should be alleged and proved that the assignment of the judgment was made and accepted in full satisfaction of the note, and not executed merely as security or contingent means of payment. Sinard v. Patterson, 3 Blackf., 353; State Bank v. Littlejohn, 1 Dev. and Bat., 563. In the case of Artcher v. Zeh, 5 Hill, 200, the opinion states that “ the 'agreement leaves it equal whether the advisement or credit was not to be the usual conditional one, to become absolute on the assigned claim proving available. Such is the legal construction of an agreement to take a claim against a third person, to be applied upon a precedent debt, and the law will not hold it to be an absolute payment, unless there be an express agreement to take it as, per sey a satisfaction. In the absence of such an agreement, the law will not compel the creditor to apply it in discharge, till the money be actually received.” The opinion goes farther, and asserts, that even the transfer' of a negotiable note against a third person would not have been a satisfaction, unless made upon terms indicating an absolute discharge or payment. But in this case there is other testimony tending to remove all reasonable doubt. The plaintiffs not only prove themselves in possession of the note, but also establish the additional evidence of indebtedness, by proving the defendant’s promise to pay them the full amount of their claim upon certain conditions. Had the judgment been assigned for the purpose of paying the note, the inference is, [147] that it would have been given up to the defendant for cancellation, or at least a receipt given in satisfaction of the indebtedness. Viewing all the evidence as it appears before us, and the nature of the proceedings below, we think that justice loudly ■ demands a new trial, and that the court erred in refusing it; but as the claim of the plaintiffs was placed in jeopardy in the court below by their own mismanagement, the costs of this court will be. adjudged against them. Judgment reversed.