Pollock v. Hoag

4 E.D. Smith 473

• Court: New York Court of Common Pleas
• Decided: December 15, 1855
• Status: Published

Opinion

By the Court.

Woodruff, J.

1. Parol evidence of the recovery of a judgment upon the claim, the collection of which was guaranteed by the defendant, was inadmissible, as was also parol evidence that a transcript had been filed. But the objection to this evidence was obviated by the production of the transcript, and by producing the justice, with his minutes and record of the judgment.

2. The minutes of the justice, produced by himself and sworn to, are competent evidence of the recovery of the judgment. (McCarty v. Sherman, 3 J. R. 429; Prosser v. Brown, 12 ib. 165; Jackson v. Jones, 9 Cow. 182.)

3. If a party would afterwards complain that a question put to a witness on the trial is leading, he should object upon that ground, otherwise the court, on appeal, will disregard the objection.

4. Promises by the defendant to pay the debt were competent evidence. They are not only admissions of liability, but are evidence that the defendant approved of the steps taken by the plaintiff to collect the claim from the original debtor, and his satisfaction with the diligence used to enforce the collection.

5. If the evidence that the plaintiff employed the defendant’s attorney to take the proper steps to make the collection was purely irrelevant, it would form no ground for reversal; but in connection with evidence that the attorney acted under the defendant’s instructions, I think it was relevant and proper.

6. The question whether the plaintiff had used due diligence would have admitted of great doubt, had not the defendant’s connection with the prosecution and his promises of payment been shown; but, under that evidence, the question was a proper one to be disposed of by the court below, as a question of fact, and with the finding on that subject we do not, when any doubt exists, interfere. And the fact that another execution, issued to the sheriff* some fifteen days after the execution issued in favor of the plaintiff had expired, and for a smaller sum, was collected, did not, I think, tend to show that the former execution might have been collected. The evidence that the defendant himself undertook to see the sheriff and give him instructions touching the service of the execution, I think relieves the plaintiff from the imputation of negligence on his part, notwithstanding it now appears highly probable that if proper efforts had been made, the sheriff would have collected the amount of the judgment.

1. There was no error in the allowance of interest. The guarantee covered the whole demand, and the account guaranteed purported to be an account due and rendered. If, in this respect, the guarantee was true in its representation, the account bore interest from as early at least as the date of the guarantee, and the defendant is not at liberty, in this action, to deny it.

8. Costs and expenses in prosecuting the claim were shown to have been incurred, and, as I think, the court was warranted in finding that they were necessarily incurred, except the costs on appeal. The evidence did not show that any services were rendered by the plaintiff’s attorney in the matter of the appeal. The attorney says he charged $122 on the appeal, without proving any services to warrant the charge.

9. The defendant guaranteed the collection of the claim against Latham within a reasonable time, provided legal and proper steps were taken to enforce said collection. The plaintiff has shown the recovery of a judgment against Latham, and the issuing and return of two successive executions against him. This, I think, was sufficient; though it appears that appeal was taken, it nevertheless appears that the ordinary legal remedies have been exhausted, and that those remedies were not interfered with, prevented, or even stayed by such appeal. The judgment and execution is to be regarded as so far final, that further process, even had the appeal been prosecuted to an affirmance, would not, so far as can be gathered from the case, have been any more effectual than the steps already taken. Indeed, the recovery of judgment, and the issuing and return of the execution thereon, is, I think, all that the plaintiff is bound to show to entitle him to recover on such a guarantee. (See Leonard v. Giddings, 9 J. R. 355; 4 Cow. 173; 6 ib. 624; Backus v. Shepherd, 11 Wend. 635.)

The judgment should be affirmed for all except twelve dollars, which should be deducted.

Adjudged accordingly.