Libbey v. Pierce, Jewett & Co.

Bellows, J. The first question is, whether the amended count was properly received. The original declaration was a special count against defendants as endorsers of a promissory note, with a count for money had and received ; and we are of the opinion that the identity of the original cause of action is preserved, notwithstanding the amended count for money paid. It is true, that, under the count for money paid, matters not connected with this note would ordinarily be admissible, but to guard against that a specification of this particular claim might properly have been required. The evidence offered by the plaintiffs, however, related only to that claim, and it was of such character as to leave it not quite clear whether the transaction was a purchase of the note, or a payment of it, at defendants’ request. But it is manifest, that, upon either view, it was the same money that was sought to be recovered, the amended count being appropriate if the transaction was found to be a payment. In accordance with adjudged cases in this State, we think the amendment was rightly admitted. Stevenson v. Mudgett, 10 N. H. 338; Burnham v. Spooner, 10 N. H. 165; Wiggin v. Veasey, 43 N. H. 313. Whether the motion for a nonsuit was improperly denied or not, it is not material now to inquire, because the defendants elected to proceed, and evidence was adduced afterwards which made a new case and ren [313] dered the evidence of notice immaterial and the jury were so instructed. Under such circumstances the plaintiffs were entitled to have the case determined upon the evidence as it finally stood. If the defendants deemed the evidence insufficient, their proper course was to rest upon their exception to the ruling, but having elected to proceed to take their chances of a verdict, they must stand or fall upon the case as finally made. Bowman v. Sanborn, 25 N. H. 87; Oakes v. Thornton, 28 N. H. 44. If any portion of the evidence was inadmissible, it was afterwards rendered immaterial by the instructions of the court, and we can see no ground to believe that it could have influenced the jury. Hamblet v. Hamblet, 6 N. H. 334; Deerfield v. Northfield, 10 N. H. 269; Judge of Probate v. Stone, 43 N. H. 593. The remaining question is, whether there is error in the instructions to the jury, that if they found the facts to be as testified to by Libbey, their verdict should be for the plaintiffs. In considering what his testimony was, we are to keep in view the facts which are not in controversy, and in connection with which his statements are made, and they are these : That the note in question was made by Briggs, but for the benefit and behalf of a certain railroad : that it was endorsed by the payees, these defendants, and discounted for them by the F. & M. Bank of Rochester in this State, and, when due, sent- to New York where it was payable, and proper demand made upon the maker, but the note was not paid ; that it was in controversy at the trial whether due notice had been given to the defendants; that sometime after the note became due Pierce, one of the endorsers, an agent of the F. & M. Bank, who had the note with him for collection, the officers of the railroad, and the plaintiff's, were together in New York for some time negotiating concerning this note, the said Pierce endeavoring to get the railroad to pay it, and finally the plaintiffs paid the amount of the note and took it, with certain bonds which the railroad had given as collateral security. So far there appears to be no controversy; but at this point, the said Pierce and Libbey, one of the plaintiffs, separate; Pierce testifying that the final settlement was that plaintiffs should take these bonds, pay the note and discharge the endorsers and maker; while Libbey testified in reply that, at the request of Pierce, he paid the amount due on the note and took it, and the bonds also, without any agreement or understanding that the endorsers or maker were to be discharged, or that the note was to be thereby paid. The substance of this testimony of Libbey is, that at the defendants’ request the plaintiffs bought the note in question, and paid the amount due, and received it with the bonds held as security, and this is the construction put upon his testimony by the counsel of both parties. That being the case, the question is, whether the plaintiffs can recover in this suit without proving notice or a waiver of it. If we are to regard the statements of Libbey, as established by the verdict, it would appear in connection with the uncontroverted facts that the note was then overdue, and that plaintiffs purchased it with defendants’ endorse [314] ment upon it, and without any agreement or understanding that they were to be discharged, and purchased it at their request. It appears also, that the defendants were active in endeavoring to get the note paid, and in that way manifested an interest in it which may fairly be presumed to have arisen from their position as endorsers. Under such circumstances we think that their request to buy the note without any statement that they were discharged for want of notice, would be equivalent to an affirmation that they were liable as endorsers, and they could not afterwards urge the want of notice as a defence. Had they endorsed the note at that time, it would have stood upon the footing of a note payable on demand, and therefore a demand and notice in a reasonable time would have been necessary to charge them. Dwight v. Emerson, 2 N. H. 159; Colt v. Barnard, 18 Pick. 260, and cases cited; Van Hœsen v. Van Alstyne, 3 Wend. 75, and Bishop v. Dexter, 2 Conn. 419. But in this case, the note was endorsed before it became due, and no new undertaking as endorsers was entered into by the defendants at that time ; and the plaintiffs took the note with the right to understand, in the absence of any different representation, that the parties apparently liable had not been discharged by any laches of the holder, or otherwise. The general principles applicable to this class, of cases are well settled. They are these: "Where one by his words or conduct wilfully causes another to believe in the existence of a certain state of things, and induces him to act on that belief, or to alter his own previous position, the former is concluded from averring against the latter a different state of things as existing at the same time.” Pickard v. Lears, 6 A. & E. 460; recognized in Drew v. Kimball, 43 N. H. 282, and cases cited; and upon this principle, if one stands by and sees his property sold to another, and is silent in respect to a claim which he knows he can set up, whereby the purchaser is misled, he will not be permitted afterwards to make such claim. Wells v. Pierce, 27 N. H. 503, and cases cited; and Watson, Ex’r, v. McLaren, 19 Wend. 557. In these cases it will be perceived that the person to be estopped is supposed to be aware of the existence of his claim, or the falsity of his affirmation at the time he made it, and is therefore guilty of fraud; and in ordinary cases where such party has no interest in the transaction, but is merely applied to for his opinion, the scienter is necessary to charge him. Odlin v. Gove, 41 N. H. 465. But if a party affirms either that which he knows to be false, or does not know to be true, to another’s loss and his own gain, he is responsible in damages for the injury caused by such affirmation, for it is, both in morality and law, a falsehood. Adamson v. Jarvis, 4 Bingh. 60, where it was held that the scienter need not be averred or proved; and in Lobdell v. Barker, 1 Met. 193, the same doctrine is recognized. In Blodgett v. Webster, 24 N. H. 91, where defendant delivered to plaintiff for the price of goods a note purporting to be signed by him, it was held that he was estopped to deny that it was signed by him, or by his authority. In Wells v. Pierce, 27 N. H. 541, it was laid down as an estab [315] lished principle of equity, that "if the owner, a claimant of property, actively persuades or encourages another person, who is ignorant of his right, to pmchase the property, or any right or interest in it, he will not be permitted to claim the property or any right in it, against the purchaser, though he was not aware of his rights.” Among the numerous cases cited to this point are Hunsdon v. Cheney, 2 Vernon 150, and sundry American cases. And the same doctrine is fully recognized in Davis v. Handy, 37 N. H. 65, where a creditor was about to levy his execution upon the debtor’s personal property, and a third person, the defendant, interfered and requested him to levy upon certain real estate, and agreed that he, the defendant, would himself redeem by paying the debt before the year expired, if the creditor would do so, which he did accordingly. It was held, Perley, C. J., that the defendant having actively encouraged this levy to be made, could not be permitted to set up a title in himself existing at the time he made the representations, even although he was not then aware of having such title, and holding that in this respect it differed from the case where the party merely stood by and was silent. The case of Lobdell v. Barker, 1 Met. 193, before cited, was where the defendant, the holder of a note, fraudulently procured a minor to endorse it, to enable him to effect a sale of it, and afterwards, through his agent, sold it with such endorsement remaining, and without disclosing its invalidity. It was held that the sale in this way would be equivalent to an express affirmation that the endorser .was liable, and that the defendant would be responsible for the injury caused by it, even if proved that before the sale he had repented of his intended fraud, upon the ground that he ought then to have erased the endorsement before offering it for sale. The question then, is, whether the case before us comes within the principle established by the authorities just cited. The substance of the case would seem to be, that plaintiffs purchased the note, with the names of-the defendants upon it as endorsers, after it became due, paying therefor the amount of it; and purchased it at the request of the defendants, who, at the time apparently in the character of endorsers, had been endeavoring to get the railroad to pay it. Had the case found that the defendants were silent upon the subject of the want of notice, it would have been clear, upon the principles stated, that defendants could not have set up that defence, and the question is, whether it is necessarily to be inferred from the testimony of Libbey that defendants said nothing about the want of notice. Neither Pierce nor Libbey say that the subject of notice was mentioned. Pierce says that plaintiffs were to pay the note, take the bonds and discharge the maker and endorsers ; while Libbey says that at Pierce’s request they paid the amount due on the note, and took it and the bonds, without any agreement or understanding that the endorsers and maker were to be discharged, or that the note was to be thereby paid. Could this statement of Libbey’s be true, and the jury still at liberty to find that Pierce claimed that the endorsers were discharged for want of notice ? If they could properly so find, it ought to have been left to [316] tbem with proper instructions, and that might have been the better course. But upon the whole, assuming the truth of Libbey’s statement, we think it may fairly be deemed to exclude the idea of a claim to be discharged by want of notice. Should it be urged that the jury might have found upon the testimony of Libbey that' the note was paid, (which, however, we cannot concede,) it would still be a payment at, tbe request of the defendants, and for which they would be liable. Libbey, however, states that there was no understanding or agreement that the note was to be thereby paid ; and upon the whole, we think, the jury could not properly have found, on that evidence, a payment of the note. Judgment on the verdict.