Beach & Eddy v. Curle's Adm'r

Scott, J., delivered the opinion of the court. The first question in this cause arises from the action of the court below in making up the issues. The statute requires replications to set offs, to be filed within two days after the filing of the plea, unless the court, for good cause, should extend the time. The replication was not filed within two days from the time of filing the plea, but within the time allowed by law for filing -a demurrer or answer to the plaintiff’s petition. The defendant has six days for answering; he may at any time within that period file it; if he file it within less time than is required, the plaintiff must, in two days, reply to his set off. This seems plain under the statute. The leave of the court, extending the time of replying, although it seems unsupported by any good reason therefor, is not such an error as would induce this court to reverse the judgment. It does not appear that any injury was sustained by the defendant, or that the merits of the controversy were at all affected by it. We are not prepared to say, that the acceptances were required to be filed with the petition, which was in the nature of an assumpsit for money paid, laid out and expended; but if they were, there was no variance. In the petition they were called promissory notes, and it turns out in proof that they were also negotiable. Where is the variance in this? All negotiable notes are promissory. If the description of the no*!» wa« silpnt, ps to its bearing interest, when, in fact, it did bear in [116] terest, the variance was of such a character as authorized the court-, under the first and second sections of article eleven of the code, in disregarding it. We see no objections to the first and second instructions for the plaintiffs. They certainly contain a correct exposition of the law applicable to this case. It was not necessary that the court should give the negative instruction, that if the money was not advanced by Beach & Eddy, at the instance of Curie & Scott, that they would find for the defendant. The instructions given, clearly convey to the jury the idea, that unless the money was paid by Beach & Eddy, at the instance of Curie & Scott, no recovery could be had. Moreover, the instruction by the court, at its own instance, sets forth this matter in a way not to be misunderstood by the jury, and perhaps a little too favorable for the defendant. There was certainly nothing in the instruction of which the defendant can justly complain. The third and fourth instructions contain Jaw applicable to the case. It was not necessary that they should refer to any contract or undertaking between the firms of Eddy & Eddy and Curie & Scott. Eddy & Eddy was a different concern from that of Beach & Eddy, and their contracts with Curie & Scott could not affect Beach & Eddy. The books of the plaintiff having been introduced in evidence by the defendants, there was no error in telling the jury that they were competent evidence for the plaintiffs. We see no objection to the 8ch instruction of the plaintiffs. It is obvious, that no contract between Eddy & Eddy ánd Curie & Scott, could affect the transactions between Beach & Eddy and Curie & Scott. The instructions given by the court, at its own instance, are not liable to the objections urged against them. The defendant cannot assume that Beach disclaimed the acts of his partner, Eddy. He is not here complaining that his name has been used in a transaction, alien to his partnership with Eddy. By bringing this suit he has affirmed the acts of his partner, Eddy, and if he is willing to abide by them, it is not for a stranger to interpose any objection for him. The court had repeatedly told the jury, that in order to enable the plaintiff to recover, the money must have been advanced at the instance of Curie & Scott. Under this instruction, had it been advanced at the instance of Eddy §c Eddy, the jury-must certainly have understood that the verdict should ■ be for the defendant. The first instruction of the defendant, related to drafts, for the amount of which, no recovery was sought. The second instruction had, in effect., been repeatedly given. If the acepptance of Beach & Eddy [117] were not at the instance and for the accommodation of Curie & Scott, the plaintiffs could not recover. The third instruction, as to notice to the drawer, was inapplicable to the case, as all the evidence showed that the payment of Beach & Eddy were for the accommodation of Curie & Scott — that there were no funds in the hands of the drawers. From the circumstances in this case, it is clear, that Curie & Scott were not entitled to notice. The other two instructions may be considered together. If Beach consented to the use of the name of his firm, to enable one of its members to obtain money on credit, it is not perceived, on what principle he would be liable on any contract his partner alone might make respecting the money. It is asked, that if Beach & Eddy can agree, that each partner may use the name of the firm, to raise money for his individual use, why may he not agree as to the manner in which that money shall be repaid. It is certainly competent for Beach & Eddy to make such a contract. But because he lets a member of his firm use the money of the firm in his private concerns, he does not thereby make himself a party to the‘individual contract. It was the understanding between the Eddys and Curie & Scott, that Beach &'Eddy’s names were to be used on the paper. In consenting to this arrangement, Curie & Scott must have known that any demand that mght accrue tq them from a breach of contract, on the part of the Eddys, would not affect the claim of Beach & Eddy against them. The idea of the defendant is, that Eddy in agreeing with Curie & Scott, to'use the acceptance of Beach & Eddy, at the same time agreed that the money advanced by them should be paid as was stipulated between the Eddys and Curie & Scott. The evidence does not warrant this view of the subject. •The last instruction does not contain a correct proposition. If one promise to pay a sum of money, and the creditor undertakes at the same time, to give the debtor employment, to enable him to pay the debt, the failure to give the employment cannot discharge the debtor from his obligation. Such a case is not within the rule which discharges the promissor where he has been prevented, by the act of the premissee, from performing the contract. It may give the debtor a right of action against his creditor for damages, but it is obvious that it would be a violation of justice to permit him to plead such a failure in discharge of his undertaking. It would be assuming that the measure of damages for the breach of such a contract, would be equal to the debt, whereas, in fact, no damages may have been sustained. Eddy & Eddy undertook to supply coal to Curie & Scott for transportation, that by the profits of such employment, they might pay the advances made to them; [118] and they agreed to wait for such advances until they could thus be returned. There was no time limited for the performance of the undertaking of Eddy & Eddy. They were, it seems, prevented by sickness, from furnishing the coal as soon as they expected. Curie dies — all his plans are frustated, and suit is brought. On what principle can the recovery of the advances be now resisted ? Judge Ryland concurring, the judgment will he affirmed.