Lewis v. Manly

A note given by a debtor to the agent of his creditor for goods sold, in order to obtain 'a discount thereon, and afterwards given up through misrepresentation of the drawer’, is no extinguishment of the original debt. Letters written by strangers to a witness are no evidence to prove an independent material fact, but they may be received as introductory evidence. Writ of error to the Court of Common Pleas of Philadelphia county, to which the following record was returned. “ Sixty days after date I promise to pay Mr. Jesse Hollingsworth or order, eight hundred dollars, negotiable at the office of Discount. Value received. Eichard Lewis.” At the last term, Messrs. J. B. M’Kean and S. Levy for the plaintiff in error, took three exceptions. The drawer of a bill may maintain an action as indorsee on the accepted bill, if he had effects enough in the hands of the acceptor to answer the bill, otherwise not. When a merchant draws a bill on his correspondent, who accepts if, this is payment, for it makes him debtor to another person, who may bring his action. 10 Mod. 37. This note i,s quasi a payment, and the rent belongs to the administrator of 0., and not to the administrator de bonis non of B. 1 Tern. 473. Now whatever may have been the intention of giving the note, it does not appear on the face of it that Hollingsworth was Manly’s agent therein; and being made payable to himself, he must have indorsed it over, before Slaytor’s signature thereon could be of any avail. If the note has been delivered up through any unfair conduct in Lewis, trover would lie for it, or Lewis might be sued thereon, and notice been given to him to produce it. The contract on the sale of the goods was determined by Manly’s accepting this negotiable instrument, which operated as a virtual payment. In the case of Isaac Watts v. Thomas Willing, determined in this court in 1788, Mr. Willing had become surety in a bond for Colonel William Byrd to the plaintiff; Byrd drew a bill of exchange payable to the plaintiff or order, in London, for part of the money, which [205] Watts indorsed over, and the same was protested. It was held that the bill of exchange was a good satisfaction, as far as it went. 3. The testimony of Bichard Potter was inadmissible. Exclm sive of the non-production of the letters, the written ' assertions of his correspondents, who are merely strangers to the defendant, could not be given in evidence against him. A number of circumstances are brought forward to criminate Lewis, and to substantiate the allegations of Manly, which it was impossible for him to foresee or defend. It is now no longer an exception to the competency of a witness, that he is interested in tlie question trying. It goes merely to his credit. But neither Mazurie, nor Hollingsworth were even concerned in the question before the jury. A corditor’s acceptance of a security of equal degree to his first demand, is no extinguishment. 2 Bac. Ab. 452. Neither a stated account, nor promissory note can be pleaded to a suit for goods sold. 1 Burr. 9. It is not denied, but that notes and and acceptances averred to have been taken in satisfaction for debts, and so confessed by a demurrer, may be construed as extinguishments of the same; yet if they are pleaded, and put in issue as satisfactions, they must be so proved in evidence. The opinion of the court was given by this term. The first exception founded on the admission of Jesse Hollingsworth, (who had a release from the plaintiff below,) and J. J. Mazurie, as witnesses on the trial, was in some measure relinquished on the argument. It is now settled, that to exclude a witness on the ground of interest, he must have a certain not a possible benefit in the event of the suit. 1 Term Rep. 164. 3 Term Rep. 32, 34, 36, 309, 310. 4 Term Rep. 20. H. Bla. 308. 7. Ves. 61. The point has been frequently determined in this court. The second exception is, that the negotiable note given by the plaintiff in error to Hollingsworth, was an extinguishment, of the original debt, pro tanto. But it' appears on the face of the note, that it was given for the purpose of procuring it to be discounted at the bank of Maryland; and also from the record, that'the note was taken in the name of Hollingsworth, as the mere agent of Manly, in order to procure the indorsement of one Slaytor thereon,, previous to its being discounted. Hollingsworth had not the smallest interest in the note, and the discount was not effected. It was afterwards surrendered up to Lewis, on the delivery of goods charged at exorbitant prices by him to the agent of Manly, and that transaction was grounded on the assumed character and fraudulent pretext of Lewis’s insol ven cy. Under these circumstances, we cannot conceive that the note was an extinguishment. Vide 5 Trenx Rep. 516. The last exception relates to the receiving of Richard Potter as a witness, to prove the contents of lettex’s received from his correspondents in Baltimore, respecting the solvency of Lewis, which were lost or mislaid. If this testimony was produced as independent, material evidence, to establish a fraud preconcerted by Lewis, we should clearly think it was inadmissible. ■ The written or verbal declarations of these correspondents could not be received as proof of the fraud. It vas res inter alios aeta. But if it was regarded as mere introductory evidence, to show the reasons of Potter’s condxxet in refixsing the profferd composition of Lewis for the demand of the company, we conceive, that it would be admissible in this light. From the penning of the bill of exceptions, the court are inclined to consider it in the latter view. One of the objections taken is, that the original letters should be produced, and that the contents thereof [207] should not bo stated by the witness. But if these letters were lost or mislaid, it was out of the power of the witness to produce them; and the case would therefore fall within the well known exception to the general rule, of recurring to inferior evidence, ex necessitate rei. On the whole, the point of fraud in the transaction having been fairly left to the jury on all the facts and circumstances, and they having been fully satisfied of that fraud, we are of opinion that the judgment of the Common Pleas be affirmed.