Curry v. Rogers

21 N.H. 247

Opinion

Eastman, J.

The motion to set aside the nonsuit, ordered by the court in this case, raises three questions, which we will consider in their order. The first is, did the defendant sign the subscription-paper on which the special count in the writ is based? This paper is the foundation of all claim upon the defendant; and although he might be liable upon the other counts in the writ, under a state of facts which could readily be supposed, yet the essence of his liability depends, and would depend, upon his primary steps in making himself liable upon the subscription-paper. This paper, it appears, was lost; and before secondary evidence of its contents could be introduced its execution in some way must be proved. ■

The usual course to fix upon a party the execution of a lost instrument is, to show that it once had an existence, and that the party’s genuine signature was upon it. It then becomes competent, on proving its loss, to show its contents. Where the instrument is a specialty and attested by witnesses, proof by those witnesses would be the ordinary mode of showing the signature of the party. Where the paper is a mere simple contract, the signature can oftentimes be shown by some one who chanced to see the party affix his name to it. But this, in many instances, cannot happen, because simple contracts, from their very nature, are frequently executed in the presence of the parties only, who, from their interest, would be excluded as witnesses. A party’s oath can be received to show the loss of an instrument declared on; but its execution and contents must be proved by others. When, therefore, the execution of a lost paper is in dispute, it is oftentimes extremely difficult to show it, unless the party shall in some way acknowledge the signature, or do some act from which a legitimate inference may be drawn that he signed it. Where the execution is not particularly disputed, slight evidence that the paper once existed, is sufficient. The admissions of a party may be proved, to establish both its existence and contents. Thomas v. Harding, 8 Maine Rep. 417; Corbin v. Jackson, 14 Wend. 619; Mauri v. Hefferman, 13 Johns. 58, 74. But, whenever an instrument has been lost and its execution is disputed, it is incumbent upon a party to prove its existence as a genuine instrument, before secondary evidence of its contents can be introduced. Kelsey v. Hanmer, 18 Conn. Rep. 311; Boskin v. Seechrist, 6 Barr’s (Penn.) Rep. 154; Elmondorf v. Carmichael, 3 Littell’s (Ken.) Rep. 472; Truby v. Byers, 6 Barr, 347; Kimball v. Morrell, 4 Maine Rep. 368; Jackson v. Frier, 16 Johns. 194, 196. And in Anderson v. Snow, 8 Alabama Rep. 504, it was held, that the contents of articles of partnership could not be proved by a witness who had seen the paper with the party’s name upon it, but did not know that the signature was genuine. Excluding the conversation of the defendant with the two witnesses who testified, the evidence in the present case would, be parallel with that in Anderson v. Snow. It would be, simply, that a subscription-paper once existed, with a name upon it purporting to be that of the defendant. This paper being disputed, must be proved by some competent evidence to have been signed or assented to, before it could be considered by the jury. Does the testimony of the witnesses aid the matter? If the witness, to whom the defendant said, “ You may put me down $12, in lumber,” had affixed the defendant’s signature to the paper, that would have been sufficient. Being merely a simple, parol contract, verbal authority and directions to sign the paper were enough. The witness, however, did not affix the defendant’s name to any of the papers, nor did he authorize any of the building-committee to do it. Nor would it avail any thing, had the witness instructed them so to do, and they had followed his instructions, for his authority extended to no power of substitution; and any act done by them, by his direction, would be a mere nullity, so far as the defendant could be made chargeable thereby. By this witness, then, nothing is shown that could be competent for the consideration of a jury.

The testimony of the other witness is more doubtful. From a part of his statements, there would seem to be an admission by the defendant, of liability upon the subscription-paper, arising either from an actual or authorized execution of the same. But when the whole is taken together, it being all one conversation, and he alleging that he should not pay it, and that it could not be proved that he signed the paper, it is by no means certain that any thing can be extracted from the testimony which would be competent to base a verdict upon.

But we will pass to the consideration of the second point in the case; which is, that no demand was made upon the defendant according to the terms of the subscription. The only demand proved, is the one by the attorney into whose hands the papers had been put for the purpose of collection. Assuming that the defendant’s name was legally upon the paper for $12, payable in lumber, this demand would probably be sufficient, provided there was nothing in the terms of the subscription-paper requiring a different demand to be made. The words of the paper are, “ the lumber to be delivered on the place of location, on demand, and the work on demand from the committee, who are Colonel James Cofran, John Taylor, and Benjamin Hill.” A demand is to be made both for the labor and lumber. That this is to be done by the committee, for the labor, is conceded; but the distinction is taken in the argument, that while agents are agreed upon to make the demand for the labor, that for the lumber is left indefinite. It is difficult to perceive any thing in the reason of the transaction or the situation of the business, that would lead the projectors of the enterprise, or the subscribers to the papers, to adopt a different course in making the demand. So far as we can discover, it was quite as necessary to have suitable and judicious men to make a demand for the lumber, as for the labor. Both would naturally be required more or less together, and it would be no forced construction of the terms of the paper, to hold, that the demand in both instances was to be made by the committee designated. Such, in fact, we think was the intention of the parties, and such but a fair and legitimate conclusion from the words expressed. But, whatever might be our conclusions in regard to these points, even should we hold that there was evidence here which might have been submitted to the jury as competent, from which they could find, not only that the defendant signed the subscription-paper or authorized his signature to be affixed thereto, but also that a proper and sufficient demand was made upon him, still, an examination of the third point places the matter beyond doubt. A difficulty arises here, which, upon the facts presented, cannot be obviated. There is no privity of contract between the parties to the suit, and nothing shown which can place them in the relation of debtor and creditor. If the defendant can be holden at all, in this action, it must be upon the general counts. The evidence cannot sustain the special count upon the subscription-paper. The contract by that paper was with the co-signors, and not with the plaintiffs. That others signed the paper with him, is a sufficient consideration to raise a promise to pay according to the special agreement; and that consideration may be so transferred by the action of the defendant as to bind him to others for money paid. Unless some action were taken by the defendant, binding upon him, whereby he became obligated to others for the purposes of carrying out the designs of the subscribers to the paper, he could be holden to the subscribers only. His contract was with them ; not with others. This committee, the plaintiffs in this action, were appointed at a meeting of some of the subscribers. There is no provision in the paper for any such meeting; but upon those who saw fit to attend it, and who took part in its proceedings, the appointment of the committee may be binding. It may be regarded as a subsequent arrangement and agreement among themselves, to abide by and carry out their doings. Upon such, the plaintiffs should have a good claim. They were, in fact, employed by them to proceed and erect the building; and we can discover no good reason why they should not have a legal cause of action, upon a count for money paid, for all’sums properly expended in furtherance of the object and designs of the donors. Upon those, also, who did not attend the meeting at which the plaintiffs were appointed, but who subsequently assented to its doings and agreed to the expenditure of the money by the committee, the plaintiffs should have a claim. Upon those, too, who recognized the proceedings of the plaintiffs and ratified their doings, there may likewise be a cause of action. But this defendant stands not in the light of either. He was not notified to attend the meeting at which the plaintiffs were appointed. He neither attended that nor any other meeting; nor did he consent to, or ratify its doings, or in any way recognize his liability thereafter. We can discover no privity of contract whatever between him and the building-committee. There were no dealings or transactions of any kind between them. His contract, if any, was with his co-signors. George v. Harris, 4 N. H. Rep. 533. And, upon the facts presented here, it is they alone that can maintain an action, if it can be maintained at all.

The cases cited in the argument are based upon a different state of facts, and do not sustain the, plaintiffs in this suit. Holmes v. Dana, 12 Mass. 190, was a subscription to a newspaper establishment; and the plaintiff’s intestate, Larkin, was, by the express terms of the subscription, made the trustee to receive and appropriate the money. Trustees of Farmington Academy v. Allen, 14 Mass. 172, was a subscription to raise funds for the establishment of an academy, “payable to such persons as shall, or may be, by the legislature, appointed trustees.” The plaintiffs were subsequently made such trustees by the legislature, as was providedyn the paper. Bryant v. Goonow, 5 Pick. 228, was a subscription'to establish a line of stages. The paper provided that there should be a meeting of the stockholders, for the purpose of making such arrangements, obligations, and officers, as might be necessary to carry into effect the objects proposed. A meeting was accordingly held, and the plaintiff, Bryant, chosen agent of the company, and authorized t.o expend money to purchase horses, coaches, and other necessary things connected with the business of the company. In each of these cases, there was something upon which to base either an express or implied promise from the defendants to the plaintiffs. In the first, Larkin was the person to whom the money was to be paid by the terms of the paper; and in the second and third, the way was pointed out in the papers, by which the plaintiffs should become the payees of the subscribers. In the last case it is also indirectly held, that the defendant was entitled to notice of the meeting at which the agent was appointed ; and so far, that case is an authority for the defendant here; for no notice whatever, of the meeting at which the plaintiffs were appointed, was ever brought home to this defendant.

The general principle, that in an action of assumpsit there must be either an express or an implied promise from one party to the other; that there must be privity of contract of some kind between them, is believed to hold good in all instances. It is not sufficient that moneys are advanced, or services rendered for a party, to make him liable therefor. They must have been authorized, either expressly or impliedly, or must have been subsequently sanctioned by him. There must be something, out of which an undertaking can be raised: some privity must exist between them. Rensselaer Glass Factory v. Reid, 5 Cowen, 603; Carter v. Gault, 13 Pick. 531; Butterfield v. Hartshorn, 7 N. H. Rep. 350.

The conclusions, therefore, to which the Court have arrived, are, that upon the facts presented in the case before us, the action cannot be maintained, that the motion for a nonsuit must be overruled, and that there must be

Judgment on the nonsuit.