Dickerson v. Turner

12 Ind. 223

• Court: Indiana Supreme Court
• Decided: May 27, 1859
• Status: Published

Opinion

Wokden, J.

Action by the appellees, as holders, against the appellants, as drawers, of a certain hill of exchange, drawn by the appellants upon James Turner, of New Orleans, Louisiana, in favor of Chester Bethell, and by him indorsed to the plaintiffs.

There was a demurrer to the complaint, which was overruled, and exception was taken. This ruling is assigned for error, but as no objection is pointed out in the brief of counsel, we shall treat the complaint as good. We see no substantial defect in it.

Answer in denial, and trial by the Court; finding for the plaintiffs and judgment, overruling a motion for a new trial.

The plaintiffs, on the trial, introduced the bill described, with the indorsement thereon, together with a notarial protest, by which it appears that on the day the bill became payable, it was presented to the book-keeper of the drawee for payment, at his office in New Orleans. This protest urns objected to as inadmissible, because it did not show a presentment to the drawee, nor show any reason for presenting it to his book-keeper.

We are of opinion that the protest was properly admitted in evidence, as it was presumptive evidence of the facts therein stated, to-wit, a presentment of the bill to the bookkeeper of the drawee, and non-payment. Turner v. Rogers, 8 Ind. R. 139.

Whether or not it was sufficient to prove a proper presentment, is a question that did not arise on the objection to its admissibility. Admissibility is one thing, sufficiency, another. Without undertaking to determine whether the protest furnished sufficient evidence of the dishonor of the bill, or, in other words, whether a presentment to the bookkeeper of a drawee, at his office, is prima facie sufficient, or otherwise, we think circumstances rendering such presentment proper, may be proven, aside from the protest, if such proof be necessary.

The plaintiffs further proved, that since the suit was commenced, one of the attorneys for the plaintiffs, being surprised at learning that a defense would be set up, took one of the defendants aside, viz., Charles Dickerson, and had a conversation with him in reference to the bill. Witness presented the bill to Dickerson and asked him if he was liable upon it. Dickerson replied that he was willing to stand as surety upon if. Witness told him he was liable' or not, and if liable he wanted to know it, and if not, he wanted to know it. Dickerson then gave the witness a detailed history of the bill, and the matters out of which it grew. He said the bill was signed by his son, Hendricks Dickerson (now deceased), who was one of the firm of Dickerson, Bethell Sf Co., (the firm name in which the bill was drawn), that firm being composed of said Charles Dickerson, Hendricks Dickerson, Chester Bethell, and Frank Bethell; that Chester Bethell and Aaron Shelby, composing the firm of Shelby and Bethell, owed an old debt to Turner and Wilson, the plaintiffs, and this bill was drawn by the firm of Dickerson, Bethell Sf Co., and indorsed by Chester Bethell, to secure the plaintiffs the old debt. Witness'told Dickerson that if the bill was drawn in that way, he was liable upon it. Dickerson admitted he was liable as surety for Chester Bethell; that it was Chester's debt, and that he, Hendricks Dickerson and Frank Bethell were sureties in the bill for Chester. Witness inquired of him why they were putting in a.defense, to the action. He replied that the debt was just, but there was a settlement to be made between the plaintiffs and Chester Bethell. Witness then called his attention to some indorsements of credits on the bill, remarking that these showed that a settlement had already been made. Dickerson said he knew nothing about that settlement, but then said that Chester Bethell wanted to delay the case until he could hear from his old partner, Shelby, who had gone to Oregon, and who was a good deal behind with him; that he expected funds from him, or expected in some way, to throw off the payment of this bill, or a part of it, on to Shelby, from whom he expected to hear at every mail.

The question arises, whether, on the foregoing evidence, the plaintiffs were entitled to 'recover.

It is insisted, on the part of the appellees, that the evidence shows a want of funds of the drawers in the hands of the drawee, and, therefore, there was no need of any proof of dishonor of the bill and notice to the drawers. It is doubtful whether this proposition can be maintained as against accommodation drawers, as were the defendants in this case. Cory v. Scott, 3 B. and Ald. 619.—Norton v. Pickering, 8 B. and C. 610.—Chit, on Bills, 438. To be sure Chester Bethell, for whose accommodation the bill was drawn, was one of the drawers; but if the other drawers had taken up the bill, they would have had a remedy against him for the amount thus paid. A case similar to the present, in this respect, has recently been determined in Ohio. Abiser v. Trooniger’s ex’rs, 7 Ohio State R. 281. It was there held that accommodation drawers, who unite as drawers with the person for whose accommodation they draw, are entitled to notice of non-payment if they had reason to expect their principal would provide funds to meet the bill.

But however this may be, we think the statements made by Charles Dickerson are sufficient to sustain the finding of the Court. There is a distinct admission of liability, as the surety of Chester Bethell, that the debt was just; and from the whole tenor of the conversation, it is evident that Dickerson did not contemplate any objection to payment, on the ground that the bill had not been properly presented to the drawee for payment, and the defendants notified of the non-payment.

It will be observed that the evidence does not show that the defendants were discharged by the laches of the holders of the bill. Where such discharge is not shown, a promise to pay the bill by the drawer is presumptive evidence of due notice. Edwards on Bills, 625.

Here, there was no direct promise on the part of Dickerson to pay the bill; but there was an admission of liability, which is the very thing inferred from the promise. “ The cases go to this point only, that if, after the dishonor of the bill, the drawer distinctly promises to pay, that is evidence from which it may be inferred he has received notice of the dishonor; because men are not proneto make admissions against themselves; and, therefore, when the drawer promises to pay, it is to be presumed he does so because he knows the acceptor has refused. The promise is not direct evidence of the fact; but, in the language of Mr. Justice Bailey, where a party to a bill or note, knowing it to be due, and knowing that he was entitled to have it presented, when due, to the acceptor or maker, and to receive notice of its dishonor, promises to pay it, this is presumptive evidence of the presentment and notice, and he is bound by the promise so made.” Id. 652. And, again, says the same author, p. 654, “Where it does not appear that the drawer or indorser has been discharged by the laches of the holder, a qualified promise, taken in connection with the facts and circumstances, has been held in several cases presumptive evidence of demand and notice. As an admission, it is evidence for the jury, like any other conversation; if the liability of the drawer or indorser be conceded by him, the concession is quite as good evidence of demand and notice as a promise to pay; for, as we have said, a promise to pay is deemed an admission of liability; an admission that the bill of note has been presented in time, and that due notice of non-payment has been given.”

This is the ground of the decision in Gibbon v. Coggan, 2 Camp. 188. There the drawer of a bill being called upon to pay, said “that his affairs were, at that moment, deranged, but that he would be glad to pay it as soon as his accounts with his agent were cleared.” Per Lord Ellenborough. “By Colburn’s (the drawer’s) promise to pay, he admits his liability. He admits the existence of everything which is necessary to render him liable. When called upon for the payment of the bill, he ought to have objected that there was no protest. Instead of doing that, he promises to pay it. I must, therefore, presume that he had due notice, and that a protest was regularly drawn up by a notary.”

With this view of the law, we think the Court below was sustained by the evidence in finding that the bill had been dishonored and'due notice given.

But it is insisted that, as the admission made by Dickerson, was made after the dissolution of the partnership, it could not, in the least, affect the other parties.

This is a question upon which the decisions are conflicting. Vide Doughton v. Tillay, 4 Blackf. 433. In a later case, Kirk v. Hiatt, 2 Ind. R. 322, it was held, an admission by a partner, after the dissolution, but made at a time of the payment to him of a partnership debt, is admissible against the other partners. This is upon the principle that there is an agency in the partner, by which he is empowered to receive and receipt for partnership debts.

In an older case, Yandes v. Lefavour, 2 Blackf. 371, it was held to be settled on American authority, “that after the dissolution of a partnership, one partner cannot bind the other by the admission of a debt.”

This question, however, does not legitimately arise in the case, and, therefore, we shall not pass upon it. We leave it open, because the conclusion to which we have come would be the same, whatever might be our views as to the effect of an admission by a partner after dissolution.

The defendants were partners, but so far as the point under consideration is concerned, we think that circum.stance is wholly immaterial. The parties defendant were joint contractors, and had a joint interest in the subject of the suit. Mr. Greenleaf says: “that in the absence of fraud, if the parties have a joint interest in the matter in suit, whether as plaintiffs or defendants, an admission made by one, is, in general, evidence against all. They stand, in this respect, in a relation similar to that of existing partners.” 1 Greenl. Ev. 174. As one illustration of the rule, a case is cited where two persons were bound in a single bill, and the admissions of one held good against both. In a note to the section cited, the author says, that the propriety, and the extent of the application of the rule, have been much discussed, and sometimes questioned, but it seems now to be clearly established.

The leading case on this subject is that of Whitcomb v. Whiting, 2 Doug. 652, which was an action against one of several joint and several makers of a promissory note, and it was held that proof of payment by one of the others, of interest on the note and part of the principal, took the case out of the statute of limitations as against the defendant who was sued: Lord Mansfield said: “Payment by one is payment for all, the one acting virtually for all the rest; and in the same manner an admission by one is an admission by all, and the law raises the promise to pay when the debt is admitted to be due.”

The doctrine of Whitcomb v. Whiting, so far as it holds an admission by one to be sufficient to take a case out of the statute of limitations, has been controverted in this country, and it has been overruled by the Supreme Court of the United Stales, by the Court of Appeals of New York, and the Supreme Court of this state, at an early day. Vide Bell v. Morrison, 1 Pet. 351; Van Keuren v. Parmelee, 2 Coms. 523; Yandes v. Lefavour, 2 Blackf. 371; Kirk v. Hiatt, supra.

The modern and more correct doctrine is, that it is the new promise as such, supported by the original consideration, that takes a case out of the statute, and not the new promise, viewed merely as1 an admission of the debt. The case of Bell v. Morrison, supra, is decided upon the ground that the new promise or acknowledgment is not a mere continuation of the original promise, “but a new contract, springing out of, and supported by, the original consideration.” Such new contract, neither a joint contractor, nor a partner, after the dissolution, has power to make so as to bind his co-contractor or co-partner.

We do not, however, find much controversy in reference to the other branch of the decision in Whitcomb v. Whiting, supra, that is to say that the admission of one is an admission by all. In Bell v. Morrison, it seems to be taken for granted by the Court, that if the bare admission, without a new agreement either express or implied, to pay the debt, would take a case out of the statute, such admission made by one, would' be good as to all.

The proposition cited from Greenleaf, has been recognized and acted upon in this Court. Parker v. The State, 8 Blackf. 292. Parker and his sureties were sued on his official bond as a justice of the peace. Parker's' letters showing a breach of the bond, were offered in evidence. The Court say: “It is objected that Parker's letters are not evidence against the sureties; but we think they were. The obligors were all jointly interested as to the facts admitted in the letters, and the admission of those facts, by any one of the obligors, was, therefore, admissible evidence against them all.” Vide, also, Chapel v. Washburn, 11 Ind. R. 393.

In Bridge v. Gray, 14 Pick. 55, it was said that, “ It must be considered as a general rule, that upon each joint contract the admissions of a joint debtor, as to the existence, payment, and settlement of the joint debt, are admissible to bind the joint debtor, and to many purposes the character of joint debtors, when once established, must be deemed to continue until the debt is paid, or by some other means legally canceled, barred, or discharged.”

The reasoning of Bronson, J., in VanKeuren v. Parmelee, supra, strongly militates against this doctrine; but we think it safer to adhere to it, as it seems to be thoroughly established, than to unsettle the rule.

Applying the principle to the case at bar, it seems to us that the admissions of Charles Dickerson must be good as against all the defendants. The production of the bill in evidence made out a case of joint contract. There was no controversy as to the making of the bill by the defendants. The admissions were not of facts necessary to be proven, in order to show a joint contract. The admissions of one, that they were joint contractors, could not be received as against the others; because, until the joint contract is proven by competent testimony, there is no ground laid for the admission at all, as against the other parties. But here the joint contract was shown by the bill itself, and this authorized the admission of one of the parties, in reference to it, to be given in evidence against his co-contractor.

The admission of Dickerson, that he was liable on the bill, is equivalent to an admission that the bill had been dishonored, and that due notice had been given. Now we cannot see how he could have been liable unless the rest of the defendants were. If the defendants are to be viewed as partners, notice to one was notice to all. If notice to one is not notice to all, then notice must be given to all, in order to hold any liable. The State Bank v. Slaughter, 7 Blackf. 133. If he was liable, according to his admissions, they all were. The facts that would make him liable would make them all liable, so far as protest and notice are concerned.

C. Baker, for the appellants (1). A. L. Robinson and H. Q. Wheeler, for the appellees (2),

On the whole, we think the Court did not err in overruling the motion for a new trial.

After the rendition of judgment for the plaintiffs, the Court, upon the ^ testimony adduced, upon the trial, made an order that the sheriff levy the execution to be issued upon the judgment, upon the property of Chester Bethell, and exhaust his property, before a levy should be made upon the. property of the other defendants, upon the ground that said Chester was principal, and the other defendants sureties. To this order, Chester excepted.

We think this order was wrong. There was nothing-before the Court to show that the other defendants were sureties merely for Chester, and that he was the principal debtor, except the admission of Charles Dickerson, and that admission is not competent, as between themselves, to prove.that fact. An admission.by Chester, that he was principal and the others sureties, would probably be sufficient; but the statement of Dickerson to that effect, could not be received for that purpose, as it would be permitting a man, by his own statement, to make otit a case in his own favor, or, in other words, to manufacture testimony for himself.

This order, although wrong, does not at all affect the proceedings of the plaintiffs. 2 R. S. p. 186, § 674. But as the order is assigned for error by said Chester, it will have to be set aside.

Per Curiam.

The judgment is affirmed with 3 per cent, damages and costs; and the order of the Court, directing the execution to be levied first on the property of Chester Bethell, as principal, is set aside.