Lonsdale v. Brown

15 F. Cas. 852, 4 Wash. C. C. 86

• Court: U.S. Circuit Court for the District of Eastern Pennsylvania
• Decided: April 15, 1821
• Status: Published

Opinion

WASHINGTON, Circuit Justice

(charging jury). Although the declaration contains a great number of counts, they all may be resolved into two grounds of action. 1. On the bill of exchange; and 2. The new promise made in 1809.

1. The only objection made by the defendant’s counsel to a recovery on the bill, being a former verdict and judgment on the same bill, I shall notice no other. As to this de-fence, it is objected by the plaintiff’s counsel, that this matter ought to have been pleaded in bar; and that at all events the defendant is bound to prove otherwise, than by the record, that the bill of exchange, on which that action was founded, was the same-as the one now in controversy. There is nothing in the first objection; it being clearly settled that in actions of assumpsit, and on the case, a former recovery may be given in evidence. Burrows v. Jemino, 2 Strange, 733; 1 Saund. 92, note 2; Jones v. Scriven, 8 Johns. 453; Bird v. Randall, 3 Burrows, 1353; 1 Wils. 44, 175; 2 Saund. 155, note 4; 1 Show. 146. The plaintiff, nevertheless, must show that the matter in dispute in that action and this, is the same. To prove this, he has given in evidence the declaration in that case, which describes this bill precisely. This is sufficient to throw the burthen on the plaintiff to prove that another bill of the same tenor and date, for another sum of $600, was drawn by the defendant. If you are satisfied that the bill in the former case is the same with that on which this action is brought, your verdict ought to be for the defendant, on the counts on the bill of exchange. On the other counts, it is incumbent on the plaintiff to prove, to your satisfaction, the promise as laid; the acceptance of it by the defendant; performance of the condition on his part, by having granted the indulgence; and the ability of the defendant to pay this debt, at the time this suit was commenced.

As to the first of these particulars, I do not understand the defendant’s counsel as controverting it. Dowden proves it fully, and there is no opposing evidence. It is objected, however, that neither Dowden, nor any other witness, has proved that the offer by the defendant, to pay when he should be able, was accepted; on the contrary, that he showed his dissent by bringing an action on the bill, in the year 1816; and the case of Craig against the same defendant, decided in this court at the October term in 1S19, is strongly relied upon. But it is obvious from the slightest attention to that case, that it is totally dissimilar from the present There, the promise was made, not to Craig himself, nor to any person authorised to represent him, and by acceptance to bind him; but to a stranger. Neither did it appear that Craig, at any time, intimated his acceptance of the offer, or that the promise was even communicated to him; on the contrary, the first step he took was to show his dissent, by bringing a suit on the bill. Upon this state of the case, the court charged the jury that the objection that the plaintiff was no party to the promise, was fatal to his recovery on the promise. The court further observed, “that if the promise was valid to bind the defendant to pay whenever he should be able, it must have been equally obligatory on the plaintiff to wait, until that event should take place. But this, clearly, was not the case. The declaration was not made to the plaintiff, nor yet to any person authorised by him to assent to it, or in any respect to bind him. It was never afterwards ratified by the plaintiff, in word or in deed. So far from it, he afforded record proof of his dissent, by instituting a suit, at least two years before it is pretended that the defendant was able to pay, and grounded it. not on the promise, but upon the original cause of action.” In this case, the promise was made to the plaintiff in person, and although the witness does not say that he accepted it in terms, yet his silence, followed up by a conduct corresponding with an assent tacitly given, was equivalent to an express assent. He did indulge the defendant for seven years, and until his remedy on the bill was completely barred by the statute of limitations. And although in the year 181G, he brought a suit on the bill of exchange, yet that, nor any other act of his, could dissolve a valid contract once made; and which existed in full force at the time that suit was brought. The two circumstances then, of acceptance and forbearance, seem to be sufficiently proved.

The last particular mentioned is, was the defendant able to pay at the time this suit was brought? Mr. Davidson states that he kept an open store in Philadelphia, bought and sold goods,' and that from the extent of his .business, he was, in the opinion of the witness, able to pay this debt from the year 1810 to the time when the deposition was taken. The objection of the defendant’s counsel that the witness states nothing but his belief, is not quite correct. That he was in business, and kept an open store, are facts; and it is for you to judge from those facts of the defendant’s ability to pay this debt. It is not necessary to prove, by positive evidence,- that he was able; this could seldom be done, particularly in respect to a person in trade. If you are satisfied from the apparent circumstances of the defendant, unopposed by contradictory evidence on his part, that he was able to pay, this will be sufficient.

It is again objected, that the verdict and judgment in the former suit on this bill, proves that there was no consideration for the new promise. The court cannot consent to this conclusion. In that case, the defendant pleaded the act of limitations, and the court in the charge to the jury, stated, expressly, that the plea was a complete bar to the action. The ground then of the verdict and judgment was not on account of a defect of right, but of the want of a remedy. But a debt barred by the act of limitations, or by operation of law, not affecting the right; as for example, by a certificate of bankruptcy; is nevertheless a sufficient consideration for a new promise to pay it. Indeed, it is not quite clear, that if the case had been decided on the general issue, that would show, without something more, that the bill was not justly due, since the plaintiff might have failed in his action merely for the want of proof of some matter unconnected wuu the reality and the honesty of the debt. No opinion, however, is intended to be given on this point. It is a sufficient answer to the objection, that that cause was decided on the ground that the action was barred by length of time. If then you are satisfied that the promise was made, was accepted, and the condition of forbearance performed by the plaintiff; and also that the defendant was able to pay this debt when this suit was brought; then you ought to find for the plaintiff, on the counts grounded on that promise.

[NOTE. The case was subsequently heard by the court upon motion in arrest of judgment and upon motion for new trial. Under the last motion the court held that the jury had erred in giving damages in their verdict, and that the plaintiff was entitled to only the amount of his bill and interest. Under this ruling the plaintiff was required to go to new trial or to release damages beyond $600 and interest. Case No. 8,494.]

Verdict for the plaintiff for $1162.37.