Jackson v. Tilghman

1 Miles 31

• Court: Pennsylvania Court of Common Pleas, Philadelphia County
• Decided: June 22, 1835
• Status: Published

Opinion

The opinion of the Court was delivered by

Stroud, J.

The counsel for the defendant requested the court to charge the jury on six points, but of (líese, the argument before us has rendered it unnecessary to notice more than the two following:

1, That if at the time the papers were deposited with Mr Tilgh-man, the interest in the claim against Snowden & Wagner had passed from Blount & Jackson to Hymar, or any other person, this action in the name of Jackson, as surviving partner of Blount, cannot be sustained ; the omission to sue having been to the injury of the party interested,

2. That the order drawn by Baillie was not a draft, or negotiable instrument authorising a suit to be brought in tire name of Blount & Jackson, but that the suit should have been brought in the name of Baillie, to the use of Blount & Jackson, in which case, if there appeared to be no valuable consideration for tire order, Snowden & Wagner would have been entitled to set off the subsequent drafts of Baillie, paid by them.

1. The answer of the court on the first point was favourable to the defendant, and, it is alleged, the evidence applicable to it, clearly established the fact that Hymar, and not Blount & Jackson, was, at the time mentioned, the owner of the claim ; and, therefore, the directions of the court were entirely disregarded by the jury, or the character of the evidence was misapprehended by them. With the instructions of the court we fully concur; Gunn v. Castine, 10 Johns. 387; and in regard to the evidence, we think it was such as not to leave a doubt, that, at the time indicated, to go no further back, Hy-mar was the only person interested in the proceeds of the turpentine. The order of the plaintiff, Jackson, to the defendant, to deliver the papers to Martin, taken by itself, would be conclusive on this point, and being in writing, its construction was peculiarly within the province of the court,

(a) It is an admission of the plaintiff himself, and on this account is evidence of the highest character. Nor was there any evidence inconsistent with its plain import. The testimony of Martin, so far as it bears on this point, was corroborative. • For a year or two, in which he was endeavouring to elicit information from the defendant, in relation to the suit directed to be brought against Snowden & Wagner, he had no knowledge of Blount & Jackson ; he had not so much as heard their names; he acted solely at the instance and on behalf of Mr Bryan, whose authority rested entirely upon the debt having been Mr Hymar’s at his death. The only counteracting testimony was the implication to be derived from the correspondence of Blount & Jackson, and Snowden & Wagner ; but this is of very little value, and not to be set in competition with the express written declaration of Jackson in his order to the defendant, namely, that the suit to be brought against, Snowden and Wagner toas on account of Ilymar.

2. To the second point, as above stated, (taking the allegations of the defendant in the reasons assigned for a new trial as substantially correct) the court answered that the order given by Baillie to Blount & Jackson, although not a negotiable instrument, enabled Blouut & Jackson to sue in- their own names; that although not for a valuable consideration, its acceptance by Snowden & Wagner was an appropriation of the funds in their hands, arid that Baillie could not revoke this order, nor could a claim against him be set off against Blount & Jackson.

The defendant complains of this answer, as a misdirection of the court, and his complaint is well founded. The answer assumes what is undoubtedly correct, that Bail lie’s order was not a negotiable instrument. It assumes, too, that it was given without a valuable consideration, yet affirms that its acceptance by Snowden & Wagner was an appropriation of the funds in their hands, and that a suit could have been maintained by Blount & Jackson in their own names, against Snowden & Wagner; and further, that though not, a negotiable instrument, and without a valuable consideration, it was, nevertheless, irrevocable by Baillie. In each of these particulars there was plain error. The doctrine of appropriation depends essentially upon the existence of a valuable consideration; a previous indebtedness or contemporaneous benefit to one party, or loss to the other. Sharpless v, Welsh, 4 Dall. 279 ; Corser v. Craig, 1 Wash. C. C. R. 424; Hodgson v. Anderson, 3 Barn. & Cress. 837 (10 Eng. C. L. Rep. 247); Robertson v. Fauntleroy, 17 Eng. C. L. Rep. 94, which, with the exception of the consideration, is the same in all important particulars as the present case. Excluding such a consideration, the order, though in writing, would be a nudum pactum. Rann v. Hughes, 7 D. & E. 350, note. If, indeed, no debt was due from Baillie, nor anjr cicdit obtained by him on the faith of the order, it is difficult to see for wit at object the appropriation was to be made ; and if a naked order, not coupled with an interest, it might be revoked at any time, without notice to Blount & Jackson. Hunt v. Rousmanier, 8 Wheat. 174. It is needless to cite authorities to show that, regarding the facts to be as the answer of the court assumes, the action ought not to have been brought in the name of the present plaintiff. Corser v. Craig is a stronger case, and there the name of the original party was used.

It may be proper to add, that although the proof was very slight and unsatisfactory, the assertions of Blount & Jackson, contained in (heir letter to Snowden & Wagner of July 22d, 1820, furnished some ground for submitting the question of a valuable consideration to the jury, and if this liad been found, the case would have borne a strong analogy to Israel v. Douglass, 1 H. Bl. 239, and fallen within the authority of Mouledale v. Birchall, 2 Bl. Rep. 820; and Fenner v. Mears, Ibid. 1269.

In granting a new trial, we have the concurrence of the judge who tried the cause, for he was dissatisfied with the verdict, as contrary to the evidence, and to his charge on the first point, as above stated.

Rule absolute.

M’Coy v. Lightner, 2 Watts 347, published, since this opinion was given.