Porter v. Talcott

1 Cow. 359

• Court: New York Supreme Court
• Decided: August 15, 1823
• Status: Published

Opinion

Wo on woe th, J.

This was an action of assumpsit, to recover the sum of $6500, being the difference on exchange X)f vessels.

The plaintiffs declare, first, on a special agreement-whereby they exchange the brig Emma for the ship Vigilanti averring that the defendants promised to pay the plaintiffs $6500 to boot. The declaration, also, contains counts for goods sold, and the money counts.

It is contended, on behalf of the defendants, first, that the action for goods sold and delivered does not lie, the con-' tract being a special one ; and secondly, that the contract proved, varies from that laid in .the special counts.

I am inclined to the opinion, that the proof supports the general count for a sale. In Blackstone, 2 vol. 446, it is laid down, that “ sale or exchange is a transmutation of property from one man to another, in consideration of some price or recompense in value. If it be a commutation of goods for goods, it is more properly an exchange ; but if it be a transferring of goods for money, it is called a sale. In the present case, the contract'may be considered as partly an exchange, and partly a sale. Every thing relating to-the exchange, having been executed, I perceive no legal objection against declaring, generally, for a' sale, as to the residue ; such form of declaring is "approved in 2 Chitty 85, n. (e.) The distinction taken is this, that where an agreement is executory, indebitatus assumpsit will not lie, until the terms of it are performed; but when the contract is executed on the part of the plaintiff, he may declare generally. This doctrine is fully recognized in Kelly v. Foster, (2 Binny, 4 ;) and is supported by the cases of Gordon v. Martin, (Fitzg. 302 ;) Alcorn v. Westbrook, (1 Wils. 117 ;) and lu Buller's Ni. Pri. 139.

The case of Brooke v. White, (4 Bos. & Pull. 330,) is very much in point. The action was for goods sold and delivered. It appeared that they were sold at two months credit, to be paid for by a bill, at 12 months ; 14 months had elapsed when the action was commenced. It was held that no action could be maintained for goods sold, until the expiration of the period, at which the bill would become due. If the hill be not given, the plaintiff may bring an action • , , , ’ r, ,, • , f ,v on the special contract; but alter the expiration ol the period of credit, it was no use to give the bill, for the party is then entitled to receive his money. Heath, Justice, observed, that he had always understood, that when a contract is executory, the party must declare specially; but that when it is executed, he may declare generally. Rooke, Justice, took this distinction, as found in all the cases, that the plaintiff can only recover upon a special action, until the time of credit has expired. In the present case, the plaintiff had fully performed, by conveying and delivering his vessel; the payment of $6500, which the plaintiff was to receive, in addition to the transfer of the defendants’ vessel, alone remained to be performed: it was agreed to receivejthe notes of Noah Talcott, the agent; they were given, and this action was not commenced until after the time of credit had expired. If the defendants are liable for this demand, it seems to me, the general count is supported by the proof given at the trial. (2 Chitty, 84, note (e.) Mussen v. Price, (4 East, 147.) But if this were otherwise, I think the count on the special agreement is substantially correct. The objection is, that no notice is taken of the agreement, to accept .Noah Talcott''s notes, nor are the times set forth, when they became payable. The same principle that will authorize a party to declare generally, after the money is due, will, I apprehend, allow him in declaring on, the special agreement, to aver the non-payment of the money generally, without going into a particular statement of the manner and periods of payment. As to the manner of securing the , money, there could be no breach as to that, for the notes were given as stipulated ; and the money having become due, why should a particular statement in the declaration be necessary ? If there had been a refusal to give the notes, or a prosecution been commenced, when a part only of the money was due, the count would have been defective ; it' would then not correspond with the proof. The case, as now presented, is very different; every thing has been performed, except payment of the money, to be given on the' exchange. I fully concur in what was said by Chambre, Justice, in Brooks v. White, that the qualifications respecting ' the mode of payment, are introduced for the benefit of the purchaser, and during the time to which they relate, the seller must sue on a special contract; when that time is expired, the money is actually due. The plaintiff has set out all the contract, that remains to be performed, and that is enough to entitle him to recover. In Clark v. Gray & others, (6 East, 564,) Ld. Elhnborough, who delivered the judgment of the Court, observes, that it is sufficient to state, in the declaration, so much of any contract, consisting of several distinct parts and collateral provisions, as contains the éntire consideration for the act, and the entire act, which is to be done in virtue of such consideration ; and that the rest of the contract, which only respects the liquidation of damages, after a right to them has accrued, by a breach of the contract, is matter proper to be given in evidence to the jury, but not necessary to be shewn to the Court in the first instance, on the face of the record. The principle here stated will uphold the special count; for the transfer of the plaintiffs’ vessel, is the entire consideration for the act, and the non-payment of $6500 is the entire act to be done in virtue of such consideration. There is, then, no material variance. This objection cannot prevail. But it is contended that the plaintiffs elected to take Noah Tal~ cott, the agent, as their debtor, and cannot afterwards charge the principals.

The plaintiffs treated with Talcolt, as the agent of the defendants, and agreed to take his notes. The jury have found that there is no evidence of any agreement, or mutual understanding, that the defendants were, or were not, bound to the plaintiffs for the amount of the notes. I think this finding warranted by the evidence. The question then is, whether on these facts the defendants are liable. The law js well settled, that a note given by the debtor fora precedent debt, is no payment of the original demand, unless it, is expressly agreed to receive it in payment. (5 John. 68. 7 John. 311. 2 John. 455.) It is here contended, that the plaintiffs have elected to take Noah TalcotPs notes, and thereby exonerated the defendants, The ca¡5,e °f Johnson v. Weed, (9 John. 310) is not an authority to prove, that a promissory note of a third person, for goods sold and delivered, is no payment, unless the vendor agrees to take it actually as such, because, it is evident in that case, the plaintiff did not intend to take Townsend’s note at his own risk. In Whit-heck v. Van Ness, (11 John. 409,) on a review of all the cases, this doctrine seems to be settled, that if the vendor of goods receive from the purchaser the note of a third person, (the note not being forged, and there being no fraud or misrepresentation) such note will be deemed to have been accepted by the vendor in payment, unless the contrary be expressly proved. The inquiry then is, whether Noah Taleott is to be considered in the light of a third person, within the meaning of the rule ? he was an agent merely, and represented the defendants. In the case of Everett v. Collins, (2 Campb. 515,) it was held, that if a creditor prefer a bill of exchange, accepted by a stranger, to cash, he must abide the hazard of the security lie takes. In that case, the agents of the defendant, who was the debtor, gave their check to the plaintiff, which was dishonoured; it was held that the debtor was not discharged. Lord Ellenborough observed, the agents are not to be considered in the light of third persons, but as the defendant’s servants. So here, the note of Talcott, then, is not the note of a third person, nor does it operate as payment, unless so agreed. It was supposed that the plaintiffs had elected to take N. Talcott. The case of Patterson v. Gandasequi, (15 East, 62) was cited on the argument. It undoubtedly proves, that if the seller elect to give credit to the agent, he cannot afterwards resort to the principal. It is stated in that case, as a fact, that the goods were sold on the credit of the agents. It is not so stated in the present case.

I am on the whole of opinion, that, as Talcott was merely an agent, and as there does not appear to have been any agreement not to look to the defendants, they are liable. This view renders it unnecessary to consider the application for a new trial, on the ground of newly discovered testimony. I will only observe, that if the plaintiffs’ evidence was insufficient, the applicaion for a new trial ought to be granted, on the ground that there has been reasonable diligence, qle new evidence is material, that it has been discovered since the trial, and is not cumulative. If true, it proves an important fact, decisive of the controversy, and not made out at the trial. Neither is it to contradict the testimony of N. Talcott; for he does not say, that he had never expressed to the plaintiffs an expectation that funds would be sent by the defendants, but that he has no recollection of that fact. The newly discovered evidence, therefore, would establish a fact, respecting which, Mr. Talcott has no recollection, There must be judgment for the plaintiffs.

Sutherland, J.

This is an action brought by the plaintiffs, to recover the difference agreed to be paid on an exchange of vessels, made on the 5th day of December, 1813. The exchange was made, on the part of the defendants, by Noah Talcott, whose authority is not questioned. The difference agreed to be paid to the plaintiffs was $6500, for which amount they took the notes of Noah Talcott 4r Co. which, having been dishonoured, in consequence of their failure, this suit has been brought against the defendants. The only question, upon the merits of the case, is, whether it was a part of the contract of exchange, that the notes of Noah Talcott &/• Co. should be taken, by the plaintiffs, -in payment or satisfaction of the difference agreed to be given, If it was, and if they were so received, then the plaintiffs have precluded themselves from the right of resorting to the defendants, which they otherwise would, unquestoinably, have possessed.

The jury, under the direction of the Judge, found specially upon this point, “ that, in the contract for ex- “ change of vessels, it was agreed, that the notes of N. & “ D. Talcott should be given for the difference ; that, at the “ time of making the agreement, it was expressly declared, “ by Noah Talcott, that he was acting as the authorized agent “ of Talcott & Bowers, of New-Orleans ; but that there is no u evidence of any agreement, or mutual understanding, that “ the said Talcott &c Bowers were or were not bound, to the “ plaintiffs, for the amount of the notes of N. & D. Talcott, vi in the event of their insolvency and this finding of the iürv is perfectly justified by the evidence, as stated in the ' J 1 J J case.

The case, then, stands thus t Noah Talcott, acting avowedly as the agent of the defendants, makes the exchange of vessels for them, andgives the notes of his house for the difference. Does the transaction carry upon the face of it the requisite legal evidence cf an agreement, on the part of the plaintiffs, to take those notes, as payment, without the right of eventual recourse to the defendants ? I am clearly of opinion that it does not, within the reason or authority of the adjudged cases.

A distinction is sometimes taken upon this subject, which requires to be a little considered. It is this : that the note of a third person, if taken at the time of making the contract, is payment; but, if given for an antecedent debt, it is not. Now I apprehend, that it is payment in neither case, unless it •is agreed to he so taken ; and, if so agreed, it is equally payment when taken for an antecedent debt, as when taken for a debt contemporaneous with the agreement. In either case, the enquiry is the same—did the creditor agree to take it as payment ? and so are all the cases. In Clerk v. Mundall, (12 Mod. Rep. 203) Lord Holt says, “If A sell goods to B, and B take a bill, in satisfaction thereof, there, though the bill be never paid, A is discharged; 6c-cause it is part of his contract, that 3 should take the bill. So, in Ward v. Evans, (2 Ld. Raym. 930) Lord Holt again says, “ The taking a note, for goods sold, is a payment, because ■it was part of the original contract.” The case of Owenson v. Morse, (7 T. R. 64) turns upon this very point, and the language of Lord Kenyon, there, is very clear and explicit»It was an action of trover, for some articles of plate, purchased by the plaintiff of the defendant, and two questions' were made : 1. Whether the plate had been delivered to the plaintiff: and 2. Whether he had paid for it. In either case, it was admitted, he could sustain the action. The facts, in relation to the payment, 'were these: The plaintiff, at the time of the agreement, paid the price of the goods, in the notes of the Mcssi-s. Shaws, who kept a bank at Southampton. They failed, before the goods were sent home, and the de^en^an* refused to deliver them. Lord Kenyon says, “ If the? defendant had agreed to take the notes, as payment, and to run the risk of their being paid, that would have been considered as payment, whether the notes had or had not been afterwards paid ; and that is all that is proved, by the cases that have been cited. But, without such agreement, the giv~ ing of such notes is no payment.”

The case of Johnson v. Weed & another, in this Court# (9 John. 310) is precisely in point. Johnson sold the defendants goods, for which he agreed to take the note of John Townsend, which was delivered to him. Townsend failed, before the note fell due, and the plaintiff brought his action against the defendants, for goods sold and delivered.— Chief Justice Kent, before whom the cause was tried, charged the jury, “ that, unless the plaintiff agreed to receive the note as payment, and to run the risk of its being paid, the. mere taking of the note would not amount to a payment, if it turned out to be of no value; and that, whether the plaintiff did or did not take the note in question, under such an agreement, was a matter of fact, for the jury to find.” This was not the case of an antecedent debt. The note was actu- . ally taken, by the plaintiff, at the time of making the contract for the goods. But that was not considered sufficient evidence of an agreement, on the part of the plaintiff, to take the note in payment; and the jury found that it was not so taken. The • Court, in giving their judgment, say “If it was a part of the original agreement, between the “ parties, that the plaintiff should take Townsend’s note, in “ full satisfaction of the goods sold, so that he, and not the “ defendant, should run the risk of the note, then, undoubt- “ edly, the plaintiff has no right of action. But the fact, “ whether such was or was not the agreement, was submitted “to the jury, and they have decided in favour of the plain- “ tiff. The books all agree, that there must be a clear and “ special agreement, that the vendor shall tajee the' pa- “ per, absolutely, as payment, or it will be no payment, if it “ turns out to be of no value.”

The cases of Murray v. Gouverneur & others, (2 John. Cas. 438) of Herring v. Sanger, (3 John. Cas. 71) of Tobey v. Barber, (5 John. Rep. 68) of Schermerhorn v. Loines & others, (7 John. Rep. 311) are all cases of antecedent debts, in relation to which there is no doubt of the rule. And, if what is said by Lord Kenyon, in Owenson v. Morse, and by this Court, in Johnson v. Weed & others, be law, it is equally clear that the note of a third person, though taken at the time of making the contract, is no payment, unless it zeas expressly agreed to be received in satisfaction, as payment. The finding of the jury, in this case, establishes the fact, that there was no agreement, or mutual understanding, between the parties, that the notes of N. Sz D. Talcott should be taken in payment of the difference. It was a part of the contract, that they should give their notes, but that is not sufficient, unless they were to be given in payment or satisfaction.

In Whitlock v. Van Ness, (11 John. 409) there was no doubt, that it was the intention of the parties, that the vendor should take the note of Dean, at his own risk, and that such was the agreement; and that it was perfectly understood that the vendee was not to be responsible, in any event. The proposition of the vendee was to buy the horse, if the vendor would take Dean’s note for hint, to which he assented. And Spencer, Justice, in delivering the opinion of the Court, puts it upon that ground. He says, “ The single point for our determination, in this case, is, whether the note of a third person, agreed to be taken in payment for goods sold at the same time, is taken at the risk of the vendor of the goods, or of the vendee.” If agreed to be taken in payment, it undoubtedly is payment; and that, in every case, whether of an antecedent debt or of a debt contracted at the time of giving the note, is the true and only point of inquiry.

But, in this case, the notes given were not, in strictness, the notes of a third person. They were the notes of the defendants’ agent, avowedly dealing for them, within the limits of his authority. In such a case, the proof of the notes having been taken in payment, ought to be more clear and explicit than though they had been the notes of a stranger ; for the acts of an agent, when dealing for his principal, and within the scope of his powers, are, in judgment of law, acts of the principal. (Everett v. Collins, 2 Campb. 515.)

I am, accordingly, of opinion, upon the merits of the case, that the plaintiffs are entitled to recover. It is not necessary to consider the objections taken to the special counts in the declaration, on the ground of variance between the contract, as stated and proved : for there is no doubt, that where there has been a special agreement, the terms of which have been performed, so that nothing remains but a mere duty to pay money, the money may be recovered under a count in general indebitatus assumpsit, with-out stating the special agreement. (Mussen v. Price, 4 East, 147. Poulter v. Killingbeck, 1 Bos. & Pull. 397., Gordon v. Martin, Fitzg. Rep. 302, S. C. Bull. N. P. 139. Kelly v. Firlee, 1 Binney’s Rep. 4. Miles v. Moodie, 3 Serg. & Rawle’s Rep. 211. Felton v. Dickenson, 10 Mass. Rep. 287.) In this case, the vessels had been delivered, and every part of the agreement xvas executed, except the payment of the money given as the difference. And the cases cited shew that this may well be recovered under a general count.

Upon the whole case, therefore, I am of opinion, that the plaintiffs are entitled to judgment, which renders it unnecessary to consider their application for a new trial..

Savage, Ch. J. concurred.

Judgment for the plaintiffs,