Watson v. Walker

23 N.H. 471

• Court: Superior Court of New Hampshire
• Decided: December 15, 1851
• Status: Published

Opinion

Eastman, J.

This action was brought upon an agreement under seal, dated August nineteenth, 1840, which is set forth at length, in the facts of the case. The declaration sets out the agreement in full, with the general averments, that the plaintiffs have kept, fulfilled and performed, all matters to be by them fulfilled and performed, and a general allegation of request upon the defendants, and neglect and refusal by them.

Several pleas were interposed to the plaintiffs’ right of recovery, upon all of which, excepting the fourth, an issue of fact was joined. To the fourth, a general demurrer was filed, and the defendants joined in demurrer. Pursuing the course adopted in the argument, we will first consider the issue of law.

That part of the agreement, upon which the questions of law are raised, is substantially as follows; “ And the said YYatson and Austin agree and engage, as soon as practicable and convenient, to send an agent to Europe, for the purpose of exhibiting said invention, and selling and disposing of said looms, and the right of making, using and vending the same, and that they and their said agent, shall make all suitable and proper efforts to do the same to the best advantage.” “ And in case after using all proper and reasonable exertions to sell such right and privilege in Europe, as aforesaid, said YYatson and Austin, or their agent, shall not be able to effect such sales, to the amount of the said sum of one thousand dollars, and all the expenses of such agency, then in such case, said Walker and Mclntire agree, and promise to repay said Austin and Watson, said sum of one thousand dollars, and all the reasonable expenses of the agency, aforesaid, or to convey and assure to them the full undivided half of said patent right within the United States.”

The plea alleges, in substance, that although Austin and Watson did send an agent to Europe for the purpose of making the sales according to the agrément, yet that they did not within a reasonable time,-inform the defendants that neither they northern agent had been able to effect sales to the amount of one thous- and dollars and the expenses of the agency, and request of the defendants a re-payment of the sum of one thousand dollars and the reasonable expenses of the agency, or a conveyance to Watson and Austin, of the undivided half of the patent right in the United States; and that the covenants of the plaintiffs, being a condition precedent to the performance of the covenant of the defendants, the defendants ought not to be bound to the performance of their covenants, the plaintiffs not having in all things performed and fulfilled theirs.

The principal question raised by this plea and demurrer, is, whether notice of the failure to make sales in Europe, was necessary to be given by the plaintiffs to the defendants, before an action could be sustained upon the agreement. In relation to notice the rule is, that whenever the fact upon which the defendant’s liability is incurred, lies peculiarly within the knowledge and privity of the plaintiff, notice thereof must be stated to have been given to the defendant. But where the matter lies as much within the cognizance of the one party, as the other, notice is not necessary. When, however, notice is necessary, either by the terms or nature of the contract, it is of the gist of the action, and must be specially averred in the declaration, for without such averment, no complete right of action can appear. 1 Saund. on Pl. & Ev., 132 ; Gould’s Pleading, ch. 4, § 15 ; Rex v. Holland, 5 Term Rep., 621, 624; Lent & a. v. Paddleford, 10 Mass. Rep., 230, 238 ; Clough v. Hoffman, 5 Wendell’s Rep., 500. To these authorities many others might be added.

By the terms of the agreement, the thousand dollars, were not to be re-paid by tbe defendants, till tbe plaintiffs had sent to Europe, and made all reasonable exertions to sell the right there, without success. The effort to sell, was to be made either by Watson and Austin, or by their agent. It was not confined to the agent alone ; and whether sales were effected or not, was a fact known to Watson and Austin, or to their agent, or both, and also to the purchasers. In making the sales, the plaintiffs are to act for themselves, and the agent is theirs. He was employed by them and is accountable to them. The defendants are interested in the sales, but the agent is in no way responsible to them or required to make known to them his doings. The defendants cannot know whether sales have been effected or not, except through the plaintiffs or their agent, or by enquiries of purchasers. If the information does not come from them, and they do not see fit to communicate it, the. defendants must remain in entire ignorance of the true state of the matter, unless they employ an agent themselves, to attend the plaintiffs or their agent, and note their doings. This, the agreement nowhere contemplates; and whether sales are made or not, appears to us to to be a fact peculiarly within the knowledge of the plaintiffs. And the plain and obvious intent of the instrument is, as wfe think, that the plaintiffs shall, in case of failure to make sales, communicate the fact to the defendants before they can have a cause of action against them. i

That the information should be communicated within a reasonable time seems clear. The condition is in the alternative. The defendants were to repay the thousand dollars, or to convey and assure to the plaintiffs the full undivided half of the patent within the United States ; and it cannot be required that they should hold themselves in readiness to carry out the conditions of the, agreement for an indefinite time. Com. Dig. Pleader, C., 74. The argument of counsel concedes that if notice is necessary before suit brought, it should be given within a reasonable time. Thus far, then, the plea is good. Notice should. be given, and within a reasonable time.

Whether it was necessary to make a Special request for a performance of the conditions before suit, depends upon the ques-lion whether, upon notice being given of the failure to effect sales by the plaintiffs, the obligation on the part of the defendants was complete. The defendants contracted to repay the thousand dollars and also pay the expenses of the agency, or to convey one half of the right in the United States, in case the plaintiffs could not effect sales to the extent set forth in the contract. If, then, the plaintiffs' should attempt to sell, using all fair and honorable endeavors so to do, and failing, should give notice of their inability to effect the sales, they do all that is required of them by the terms of the agreement or a fair construction of the same, and the obligation of the defendants arises to repay the thousand dollars or convey one half of the right in the United States. When an obligation to pay is complete, a cause of action at once arises and no formal demand is necessary. Gould’s Pl., chap. 4, § 15; Com. Dig. Pleader, C., 69; Birks v. Trippett, 1 Saunders, 38, a.; Bul. Nisi Pri., 151, C.; 1 Saunders, on Pl. & Ev., 130, 131; Wallis v. Scott, 1 Strange, 88.

Had, then, the declaration contained an averment of notice, no averment of a special demand would have been necessary, though it would be improbable, as a matter of fact,.that the plaintiffs should give notice, without, at the same time, making a demand.

The plea alleges that the plaintiffs did not make known their inability to effect sales and request a re-payment of the thousand dollars or a conveyance of one half of the right. As we hold a demand or request to be unnecessary after notice given, the plea might have been bad on special demurrer, for containing the request in connection with the notice. But upon general demurrer, the statement that no request was made, may be regarded as immaterial, and rejected as surplusage. It was superfluous and unnecessary. If the plaintiffs had replied that they did make known their inability to effect sales, it would have been sufficient, without making any reply to the.allegation of want of request; and a demurrer to such a replication would have failed. Or had issue been taken upon the plea, and notice proved, it would have been sufficient without proving any special demand.

But it is further objected to the plea, that it does not confess and avoid the facts stated in the declaration. But this objection is not well founded in fact. The plea substantially admits all the averments in the declaration, but avoids them by the introduction of new matter — by the statement that no notice was given of the failure of the plaintiffs to make sales, upon which fact the defendant’s liability depended. The plea sets forth matter of fact which is traversable and upon which issue should have been joined, or a replication have been made thereto.

The further objection that the plea does not state that notice was not given to the defendants or either of them, cannot prevail. The defendants were jointly interested and the contract on their part was joint. A general allegation of no notice to them is all that is necessary, especially on general demurrer, inasmuch as the undertaking was a joint one by them. A notice to one, is a notice to both. Had the obligation been joint and several, the objection might perhaps have been good.

Upon the issue of law, then, the opinion of the court is, that there must be judgment for the defendants, upon the demurrer.

Quite a number of questions were raised upon the trial of the issues of fact, which, for the present disposition of the case, would be unnecessary to settle ; but as the action will probably be tried again, upon a change of pleadings, we have thought best to state, as briefly as may be, our opinion upon the several exceptions taken.

The evidence in regard to the statements of the defendants, touching the qualifications of Reynolds as an agent to go to Europe and effect the sales, was rightly admitted. It was a part of the contract that the plaintiffs should send an agent to Europe to sell the looms and right there. The defendants undertook to show that the agent who was sent, was not qualified; and to answer this position and rebut this evidence, the statements of the defendants in regard to the agent were admissible. They had no connection with the terms of the contract so as to be objectionable, as varying, in any way, the written agreement between the parties.

Upon the next point raised, the correctness of the ruling is very questionable. The bill produced and which was permitted to go to the jury, was- a copy of items taken from a pocket memorandum book, three years after the original entries were made. And although the witness testifies that at the time he made the copy, he knew and remembered that the several items mentioned in the bill were correct, yet none of the cases, so far as our researches have extended, have gone to the extent that a copy may be admitted, in connection with the testimony of the witness. But wherever the question has been distinctly raised the copy has been held inadmissible. This was the case in Merrill v. Ithica R. R. Co., 16 Wendell, 586 ; Doe v. Perkins, 3 D. & E., 749 ; and Tanner v. Taylor, cited in Doe v. Perkins. And it appears to us that it would be a rule of very doubtful expediency to allow a witness to make a copy of an original, years after the transaction, and be permitted to use that copy as original evidence.

Again, in this case, two copies were made. Which is to be used ? The witness is unable to identify the one taken from the original, and they are not exact copies of each other. If not exact copies, how far may they be permitted to vary before losing their character as original evidence ? And further, the original itself was not destroyed. It is true the witness testified it had been effaced, but it would have been more satisfactory to have have ha'd it produced, that the court might inspect it.

The doctrine of Haven v. Wendell, 11 N. H. Rep., 112, was evidently adopted after a full examination of the case, and after careful and mature consideration. A reexamination of those cases and the lucid and pointed remarks of the very able and learned chief justice who delivered the opinion in that case, satisfy us that the principles there laid down were entirely correct. It was there held that where a witness reduced the conversation to writing immediately after it took place, and testified that he had no doubt that the facts stated in the memorandum were true, the original memorandum might .be used in connection with the testimony of the witness. But in the case at bar, it is not the original entries, made at the time or immediately after the transactions, connected with the testimony of the witness that, at the time lie made them, he knows they were true, that were used, but a copy, made three years after the original, and a recollection that, at that time, the witness remembered that the entries he had made were correct. As we view it, this is extending the principle of Haven v. Wendell, to a considerable extent. Lapse of time, three years for instance, in most cases impairs the recollection and weakens the confidence that we place in human testimony. It is one thing to make a memorandum correctly at the time of a transaction, and quite another to make it three years thereafter. With these suggestious we pass this point.

The ruling admitting the testimony of Reynolds to show what the law of England was, as to the filing of a specification of a new invention, was incorrect. The written or statute laws of a foreign government must be verified in the same manner as foreign judgments: by the exemplification of a copy under the great seal of state, or by a sworn copy. Unwritten laws may be shown by parol evidence. Upon these points the authorities are numerous and generally uniform. Whether the law proposed to be proved by Reynolds was written or unwritten does not distinctly appear. Probably it was statute law, and if so, his testimony would be incompetent on that account. Some authorities hold that the party objecting to the parol evidenee must show the law to be a written one. Dougherty v. Snyder, 15 Serg. & Rawle, 84, 87. But assuming that it was unwritten, the testimony of Reynolds was still incompetent to prove it. The knowledge which he possessed was not of that character which a court could rely upon. It could not be regarded as anything more than hearsay. Witnesses to be competent to prove unwritten laws must be instructed in them. Story’s Con. of Laws, 530 ; Church v. Hubbard, 2 Cranch’s Rep., 237; 1 Greenl. Ev., §488.

The great seal of England proved the patent. The national flag and seal are recognized by all nations. The national seal, affixed to the exemplification of a law or judicial proceeding, proves itself. Church v. Hubbart, 2 Cranch’s Rep., 187 ; Lincoln v. Battelle, 6 Wendell’s Rep., 475 ; Griswold v. Pitcairn, 2 Conn. Rep., 85; State v. Carr, 5 N. H. Rep., 367. The ruling of the court upon this point was correct.

So, also, we think the ruling to be right in admitting the letter of Mclntire to Reynolds. It contained evidence tending to show the fitness of Reynolds to transact the business, and was the sayings of one of the defendants in regard to hhn. It was the admission of an independent fact; and as such was competent to be considered.

Thus, too, in regard to the next exception. The conversations prior to the execution of the agreement, as having a bearing upon the expenses of the agency were properly admitted. They were independent facts and formed no part of the contract and in no way affected it.

The instructions of the court in regard to the taking out of the patent in Europe, in the name of Reynolds, and also in regard to the proceedings of Reynolds in attempting to effect sales, were, we think, correct. They were mixed questions of law and fact, and we do not discover any error in the instructions given.

We think, also, that the court judged correctly in leaving it to the jury to determine whether the agent had used all proper and reasonable exertions to sell the right in Europe. Both parties were interested that the sales should be effected if they could be. And if they could not be, it was certainly for the interest of the defendants that the expenses» should not accumulate. Whether the agent should traverse the different countries of Europe, and if so to what particular extent; or whether he should not attempt to go beyond England, in using all reasonable and proper efforts to effect sales, appears to us to be clearly a question of fact for the jury. The point was, did he use reasonable and proper'efforts to make the sales ? Of that the jury should judge from the evidence.

We see no objection to the ruling, allowing the expenses of the return of the agent to the United States.

It is too late to take the exception that the letters were improperly handed to the jury. Had they been written upon and underscored for the purpose of attracting any special attention, and passed to the jury without the knowledge of the opiposing counsel or the court; or had the matter been brought to the notice of the court and the letters been handed to the jury under their ruling; in either event the verdict would be set aside. Juries must judge of papers as they are, and not as they shall be subsequently made by a party or his counsel. But inasmuch as the situation of the letters was known to the opposing counsel, it was their duty to have raised the objection to the court? that a ruling might have been had thereon. Omitting to do this, the exception must be overruled.

Judgment for the defendants, on the demurrer, and verdict set aside.