Guion v. Doherty

43 Miss. 538

• Court: Mississippi Supreme Court
• Decided: October 15, 1871
• Status: Published

Opinion

Simrall, J.:

Patrick M. Doherty, survivor of the mercantile copartnership of P. O’Donnell & Co., sued John O. Guión and Mary, his wife, in assumpsit. The object of the suit was to reach the separate property of the wife, and subject it to the indebtment to the plaintiff. The declaration contains several counts:

1st. On a promissory note made by John O. Guión; given, as averred, for sundry necessaries for the benefit of the family, and separate estate of the wife. 2d. On an account stated. 3d. For plantation and family supplies, sold and delivered. 4th. For similar supplies furnished in 1863.

Pleas — 1st. Non assumpsit; 2d. That the plaintiff agreed to accept Confederate bonds or treasury notes, but now declined to do so; 3d. By Mrs. Guión, coverture ; 4th. By Mrs. Guion^ that the goods were sold and delivered to John O. Guión on his sole credit, the plaintiff knowing that she had a separate estate, and with no intention to charge the same to her or her estate; 5th. That plaintiff knew that she had separate property, and allowed her husband, as agent, to appropriate its proceeds to the support of the family, etc., and knowing this, gave him, and not her or her property, the credit — she being feme covert.

Notice was attached that defendant would offer proof that the goods were sold at Confederate prices, and to be paid for in that currency. To the second, third, fourth and fifth pleas, the plaintiff demurred, which was sustained to all except the fourth and fifth — -to which there were replications. The jury found for plaintiff, whereupon a motion was made for a new trial, which was refused.

Sundry errors are complained of, growing out of the rulings on the pleadings, the instructions to the jury, and the refusal to grant a new trial. The demurrer to the second plea was properly sustained. The plea sets up an agreement to take Confederate and other depreciated currency, and that defendant, as soon as it could be obtained in pursuance of the agreement, got and presented to the plaintiff, Confederate bonds or currency, which he refused and still refuses to take.

Treated as a plea of accord and satisfaction, it is imperfect. Whilst it avers the accord it does not show satisfaction. An accord to constitute a bar must be full, perfect and complete. Peytoe’s case, 9 Reports, 79; Lynn v. Bruce, 2 H. Bl., 317; Balston v. Baxter, Croke Eliz., 304. If accord is relied on, it must be executed. 3 Black. Com., 15. Chief Justice Eyre in Lynn v. Bruce, said: “ Accord, executed, is satisfaction; accord, executory, is only substituting one cause of action in the room of another, which might go on to any extent.” In Allen v. Harris, 1 Ld. Ray., 122, the judge declared the “ contrary doctrine would overthrow all the books.” Also, 1 Bacon Abr., 58; Russell v. Lyles, 6 Wend. R., 391; Clark v. Dinsmore, 5 N. H., 139.

Nor is the plea 'sufficient as a tender. The allegation that “ the defendant had the same in readiness and presentation for payment,” etc., is not enough. If the thing is capable of being brought into court as specie, bank notes, etc., the plea must be accompanied with the thing originally tendered. To complete the transaction, the tender must be made, and the party must be semper paratus to pay if called on, and must repeat the tender with his plea.

3d. Nor is the plea of coverture a bar to the action. The contracts set out in the second, third and fourth counts of the declaration are such, as a wife who has a separate estate can make.

4th. There was no error in not applying the demurrer to the declaration. The argument addressed to us could have no effect except, perhaps, as to to the first count. But there were three good counts, and the rule is, if there be a demurrer to the entire declaration, and one count be good, the demurrer is not well taken.

5th. The instructions granted at the instance of the plaintiff, clearly inform the jury what contracts a wife, having a separate estate, may make, so as to be obligatory on her and her property, and conclude with the direction that the jury must look to all the facts in evidence, to determine to whom the credit was given, and to whom the plaintiff looked for payment.

For Mrs. Guión, the court charged the jury, to the effect that if Mr. Guión bought the goods on his own credit, and gave his individual note for them, then they must find for her, although part or all the goods were for her benefit, her children, and property; the jury must be satisfied that the credit was originally given to the wife, and that the plaintiff treated with, and looked to her for payment. The wife is not liable for necessaries, unless she expressly contracted for and consented thereto, or gave her express consent to be charged therewith, and the credit was given to her at the time. The duty of the husband is to provide for the support of his family, and the wife is not bound, unless she contracted for the same on her own credit, and with her consent was charged therewith, at the time. The jury are the sole judges whether the credit was given to the husband or the wife.

Thirty-odd instructions were proposed for Mrs. Guión, nearly all of them granted in the words selected by counsel. The central idea in most of them was, to whom, was the credit given? To the husband or the wife? The purpose of the charges of the court is to instruct the jury in the law applicable to the case. Whether this can be done better by presenting the same, or nearly the same ideas, in various forms of language, is exceedingly doubtful. It might tend to embarrass and confuse the minds of non-professional men, as are jurors, rather than ‘convey to them a clear comprehension of the rules of law to be applied to the facts proved. The jury could hardly have failed to see that the point of the defense was, that although Mrs. Guión owned separate property, yet, if the goods taken up, were family supplies, or for the use of her property, she was not responsible, unless they were bought with her consent, and on her credit.

8. The only remaining question is, does the testimony prove or tend to' prove that the goods were for the use ot the wife’s plantation, and of herself and family, and were they sold on her credit. In reviewing the verdict of the jury, according to repeated decisions of this court, we will not consider the testimony with the view of determining whether our judgment would concur with the jury, but only to see whether there was sufficient evidence fairly to support the verdict. If there be conflict between the witnesses, the jury were in more favorable circumstances to elicit the truth than this court. The testimony was that the wife owned a plantation, used in the cultivation of cotton; that the plaintiffs were the merchants by whom the business was done, the husband being the active manager. The business was continued through several years, the crops of cotton being delivered to the plaintiffs, and the proceeds applied as credits on the accounts.

P. W. Doherty, plaintiff, describes the transactions thus : John O. Guión had no property, and was engaged in no business from which he realized an income. The goods sold to him were solely on the credit of his wife’s separate property. The husband owned nothing. From the beginning of the business, the accounts made by Guión were paid and settled by his wife’s cotton, sent to plaintiffs for sale or shipment, and the proceeds placed to credit of the accounts. The purchase of supplies, and the shipment and sale of Mrs. Guion’s cotton was done through the husband. Neither husband nor wife ever complained of this mode of doing the business. Plaintiff kept accounts with the husbands of a great many wives, who had separate estates, just as the accounts were kept with Mr. Guión. In all such cases the credit was given on the faith of the wife’s property. Plaintiffs knew that Guión had no property ; the credit was given on account of the wife and her property; no credit could have been given to the husband; in payment of taxes on wife’s property, the receipts were taken in name of the husband.

John O. Guión, defendant, deposed that he supposed credit was given to himself; never mentioned anything about wife’s separate property; never told plaintiffs he was agent for his wife; his wife never formally made purchases, nor gave any orders; she never authorized witness to buy anything on credit; he bought all supplies on his credit, and paid for them out of proceeds of wife’s crops; owned no land; had when married, carriage and horses and some money, etc.; never owned any other property after the marriage; had no other business than to attend to his wife’s plantation; shipped her cotton, and drew drafts in his name — all this was done with \ her knowledge and consent, etc.

Aside from the other testimony, a jury might well conclude from this witness’statement, that he had his wife’s consent to buy on credit and pay with her means. It would not be a stained inference that he was recognized by the wife, as her agent to buy supplies for the plantation and family on a credit, and apply the crops in payment. He deposes that such was his practice, with the knowledge and consent of his wife. We have referred to thus much of the evidence to show that the jury were justified in coming to the conclusion that they reached, and that we would transcend the boundary which divides the duties of judges and juries, if we should interfere with this verdict on the ground of being against the great preponderance of the testimony. It is claimed that the acceptance by the plaintiff of the promissory note of Jno. O. Guión, was a merger of the open accounts into a security of higher dignity, and therefore, if Mrs. Guión was originally liable, she has thereby been discharged. In the case of Peter v. Bercely, 10 Peters’ Rep., 567, the executors of Peter, gave notes to the bank, in lieu of, or renewal of the debt of their testator. It was contended that thereby the debt due from the estate of the testator, was extinguished. Not so, held the court, unless the creditor accepted the notes in satisfaction of the original debt, and looked alone to the makers of the notes for payment.

In James v. Hackly, 16 Johnson’s Rep., 277, Spencer, Ch. J., for the court, said, “ the acceptance of a negotiable note for an antecedent debt, will not extinguish such debt, unless it is expressly agreed that it is accepted as payment.”

In Glenn v. Smith, 2 Gill. & Johns., 508, one John Heslip received the notes of Ann Haslett for a debt against the estate of Wm. Haslett, deceased, and surrendered an account receipted. In the absence of all evidence, except the receipt written at the bottom of the account, it was said by the court to be clear that the note of Ann Haslett did not extinguish the claim against the estate. The general rule is stated to be, “ that the acceptance of a security of equal dignity, is, of itself, no extinguishment of the antecedent debt.”

The acceptance, by a creditor, of the promissory note of his debtor, for an antecedent simple contract debt, does not extinguish the original debt (for both are of equal decree in legal contemplation), if it remains in the hands of the creditor, unpaid, and he can produce it to be canceled, or show that it is lost. There are cases which hold the rule to be the same, if the note of a third person is taken, unless the creditor parts with it, or is chargeable with some laches with respect to it. 5 Term Rep., 513; Pinckford v. Maxwell, 6 Term Rep., 52; Bishop v. Rowe, 3 Malel & Searl, 362.

If, however, there be an agreement by the creditor to receive it absolutely as payment, and to incur the risk of its being paid; the note, either of the debtor or of a stranger, operates as an extinguishment or satisfaction of the precedent debt. 7 Term R., 60; Toby v. Barbee, 5 Johns., 68; John v. Weed, 9 Johns., 310. In the case of Glenn v. Smith, in Gill. & Johns., the expression, “Inpayment of the above account,” was held not to be sufficient evidence of an absolute discharge of the original debt. In the case cited from 6 Term R., 52, Lord Kenyon said: “ If the bill which is given in payment does not turn out to be productive, and is not what the creditor expects it to be, it may be considered as if no such bill had been given.” It is claimed in argument that the decisions bf our predecessors, in the case of Slocumb, admr., v. Holme, admr., 1 How., , and Mayes v. Oglesby, 6 How., 50, declare a contrary doctrine. The latter case has no application; for in that case a bond was executed for the parol debt; and it was, therefore, the case of the merger of an inferior into a higher security, which extinguished ,the former. Nor does the former case, considered and construed by the facts before the court, militate against the current of authority from Westminster Hall and elsewhere. “ The plaintiff declared on a promissory note, and also work and labor done, and goods sold and delivered. Among other matters, the defendant pleaded that the account filed was closed by the note declared on in the first count in plaintiff’s declaration.” The controversy was, whether the note was given for $he account — the plaintiff insisting that the note had no connection with the account, but rested on a different consideration. In this aspect of facts, the circuit court charged the jury that if the note was given for the account, then the plaintiff could not recover on the account, which instruction was sustained as correct.

The case of Taylor & Myers v. Conner, 41 Miss. R., 728, holds that neither the note of the debtor nor that of a stranger will be a payment of the antecedent liability, unless accepted as such.

Objection was made to the reading of the note of Guión to the jury. The note of John O. Guión created no liability on his wife, and could not be evidence of any. The first count does not disclose a good cause of action against the wife. But the presence of the note on the trial, and before the jury, was proper enough as an element in the cause. Whether this paper was in absolute satisfaction for the goods sold and delivered, it was a fact in the cause — part of the res gestee of the pleadings between the parties, tending to help the elucidation of the proposition, whether the goods were supplied on the sole credit and. responsibility of the husband, or on the faith of the wife’s property and her credit*

The suggestion was made at the bar, by the counsel for the plaintiff in error, that there were features in this case materially distinguishing it from others in this court, which dismissed the liabilities of married women, and we were invited to a very careful consideration of it. We have maturely examined the record, and arguments of counsel, and are well satisfied that justice has been done, and that no error has been committed to the prejudice of the complaining party, which would warrant this court in setting aside the verdict and judgment of the circuit court.

Let the judgment be affirmed.