Sumwalt v. Ridgely

Cochran, J., delivered the opinion of this Court: This suit was brought to recover the amount of a promissory note made by Thomas S. Sumwalt, “Treas. of St.Stephen’s-Episcopal Church Fund.” The evidence contained in the 2nd exception shows, that the note in question was-drawn in- blank and given to J. W. Wilson & Co., in settlement of their account for materials furnished and work done for St. Stephen’s Church, and that afterwards, before its maturity, it was passed by Wilson to the appellee, with whom he had previously been in partnership, in settlement of a debt found to he due to him on their dissolution. It-also appears that the appellee received the note with full knowledge of the debt for which it was issued, and that he* afterwards inserted his own name as payee. The 1st exception, presenting substantially the' same1 questions as the appellant’s 1st and 3rd prayers,, was taken to the admission of the note in evidence, on the ground that it was not the appellant’s obligation, and for that reason did not support the declaration. The note on its face [114] purports to be an individual obligation founded on a! consideration expressed as moving to the maker, and the terms of the promise are not such as show with any sufficient degree of certainty that it was issued for the liability of any other party. Looking at the note alone, without regard to other evidence in the case, the- appellant would undoubtedly be held liable for its payment. The-established rule seems to be, that an agent in making a-promise for a principal, is liable on the promise, unless it-be..expressed in terms which show that it urns made for and on behalf of the principal, and where an agent makes a promissory note to a third person in terms sufficient to' bind himself as principal, the mere addition of the word agent or other description of his office or capacity, to his signature, does not change or vary the legal effect of the promise itself. Story Prom. Notes, 67, 68, 69. Byles on Pills, 27, note 1. We think, therefore, that the objection taken cannot be sustained, and that the note was properly admitted as evidence of the appellant’s liability. The 2nd exception appears to have been taken to* the admission of evidence showing that the note was drawn in blank, and passed by the witness Wilson to the appellee,, who afterwards inserted his own name as payee. It is to be observed that this evidence was offered after the appellant had proved, on the cross-examination of that witness, that the note was made and delivered to him in settlement of his account for the work done for St. Ste23hen’s Church. The real objection to the evidence excepted to is, that its effect was to extend to the ap23ellee a 23i'otection or immunity from outstanding equities of the maker,- which,, as payee of the note, he was not entitled to claim.- Upon a consideration of the whole evidence contained in this exception,- we think the objection is more technical than substantial, for on thequoof that the note -was passed to and received by the appellee, with full knowledge on his part of the transaction in which it originated, he would of necessity take it subject to the equities and defences- of [115] the mater, even if he had taken the note by endorsement and held it as endorsee. The evidence objected to could not have the effect of relieving the note in his hands from the legal defences or the equities of the maker, nor give to him the rights that an endorsee would have had by receiving the note before maturity, without notice of such defences or equities. In our opinion the objection made to the admission of ibis evidence was properly overruled. The material questions in the case are presented by the 3rd bill of exceptions. The evidence to which we have referred, shows that the note was issued by the appellant for a debt due by St. Step]ion’s Church for materials furnished and work done on its account, and that the appellee knowing that fact received it in payment of a pre-existing debt. The instruction granted by tlie Court, proceeds on the theory that the appellee’s right to recover was not affected by that information. As we have before stated, the appellee in receiving the note with full knowledge of its origin and character, took it with the same infirmities and subject to such disabilities as would have existed had he been the original creditor of the Church for whose debt the note was issued. In view of the evidence showing the character of the note, and the appellee’s knowledge of it, we think the instruction granted did not cover the case presented, and that it was erroneous, because the jury were not required to find, as one oí' the facts necessary to support it, that the appellee received the note without notice of the consideration for which it was given. Treating the note as a promise of the appellant, and the appellee, from his knowledge of the debt for which it was issued, as the original payee, the question as to the sufficiency of the consideration is then presented. The validity of every parol contract, whether verbal or written, depends on the fact of a sufficient legal consideration, and that of a promissory note in the hands of a payee, or of an endorsee after maturity, or before maturity with notice of the real consideration, is always open to inquiry. [116] Assuming that the note in question was a collateral undertaking of the maker to pay a pre-existing debt of the .church, it is clear that the consideration stated was not sufficient to support the promise, and that the appellant would not he liable upon it. The question whether the note was given for that debt, was not for the Court how.evcr, hut one of fact, “to be determined by the jury from the whole evidence in the case.” We do not see that this case is distinguishable in principle from that of Wyman vs. Gray, 7 H. & J., 409, in which it was held that in an action upon a promissory note by a payee, the maker may always prove by parol the failure or want of consideration, .and that the note if given for the debt of a third party ■should, under the Statute of Frauds, show on its face a good consideration moving to the maker. Competent evidence was offered from which the jury might not only have found that the note in question was given for a pre-existing debt of the Church, without any further or other consideration, but that the appellee was fully informed of those facts when he received tbe note. Had tbe instructions sought by the appellant’s 2nd and 5th prayers been asked on tbe finding of all these facts, they might have been granted, but as these prayers did not leave the question of tbe appellee’s knowledge of tbe real consideration to tbe jury, wc think there was no error in refusing them. The 4th and 6th.prayers, we think, were also properly refused. We have said in our consideration of the 1st exception, that the note on its face purports to be the individual obligation of the maker, and that he would he hound for its payment on the assumption that there was no evidence ■of a want of .consideration by which it would he avoided. On that hypothesis, we cannot see how the liability of Wilson to the Church, on his promise to purchase a pew, could he offered to abate or set-off the claim of the appellee; for if the note was given for the debt of the Church, without, any other consideration, it was void, and if given for some other sufficient consideration in addition to that [117] fle’bt, tbe liability of the appellant for its payment could not be affected by proof of Wilson’s engagements or promises to other parties. (Decided June 5th, 1863.) The judgment will be reversed, with leave to the appellee to take a procedendo. Judgment reversed, with leave to appellee to take .out a procedendo,