Tarbell v. A. J. Stevens & Co.

Woodward, J. As to the third cause of demurrer, we are of the opinion that the annexation of one bill of each denomination, with the averments made by the plaintiff, and with a view to the known similarity of bank bills, is a sufficient compliance with the law in this respect. No [166] good object- is perceived, for annexing' the - whole- of the seventy-two bills. The. defendant lias-perfect noticd of the entire claim, and of each particular constituting it. - • . • In regard to the second ground of demurrer — that-it is not averred that the-notes hav.e'been presented at the bank' for payment,r — in the present action tliis was- not necessary. It has been held that this averment is not necessary, in an .action -against.. the m^ker,- but that the defense of readiness to. pay, should come from the defendant. Games v. Manning, 2 G. Greene, 251; And defendants are not 'sued as indorsers, but their position is more like that of -the maker. They acknowledge their liability-, which, under these circumstances, must mean an original one; and they promised the public, to redeem at their counter, which they.have refused. The question of presentation, or of notice, therefore, does not arise. The first cause of demurrer is the objection under the statute of frauds. The. promise, or undertaking, of the defendants, or the liability acknowledged, is not in the nature of an assumption to pay the debt of another. If the defendants are'liable at all, it is upon an original and independent ground. The substance -of the transaction is, that they, by their representations, gave credit, character, and currency to the notes, and caused them to be received in the community, (and by the plaintiff,., among others), in business transactions. They were bankers in the county, and, in the first place, represented themselves liable for these bills, as stockholders. .They may-have been taken as sole- stockholders in the bank, and owners of it. In the second place, they advertised that they would redeem the notes at their counter, in said coiinty, which they refused to do, according to the declaration. Thus, by their representations of liability, and their proposing to redeem at their counter, they gave credit and currency to the bank bills, and caused them to be accepted as paper, money of value. Upon what ground can they resist an accountability to the members of that public, which they have misled? The demurrer, defends only by interjj.osing the statute of [167] frauds. We have seen that this will-not answer the case. Neither is it sufficient to say, that there is" mo" promise to any. individuals. .. They occupied'.an important and a public position in relation to the business of the communi-,ty, and in this position, and in direct reference to their relations to the business wmrld, they make representations, and assume a duty, having a bearing upon the most vital element of that business ;' and their undertaking and promise, became a promise- to .every individual hearing them, and -receiving the notes. -It- would not answer to hold, that men s.tapding in such business relations, and making representations, important, on account'of their wide bear-1 ing, could shelter themselves under this very generality, which constituted the greatest value of their.undertaking. On the contrary, the.design of .this position was to affect individuals, tind'to actuate them in tlieir business. The defendants must be considered.as undertaking to every individual who saw their advertisement, "or heard their representations. . . . . ...... ! It is the opinion óf the court that the affirmations of the petition are sufficient to1 charge the defendants, arid that1 tlie demurrer was properly overruled. ' The judgment of’ the district court is, therefore, affirmed.