Whilden & Sons v. Merchants' & Planters' National Bank , 64 Ala. 1 ( 1879 )

BRICKELL, C. J.

The statute provides, that all actions on contracts, express or implied, for the payment of money, whether under seal or not, may be united. — Code of 1876, § 2986. By the common law, the rule in reference to the joinder in the same declaration of different causes of action, applicable alike to actions ex contractu and actions ex delicto, was, that the same plea could be pleaded, and the same judgment could be given on each count; or the counts must have been of the same nature, and the same judgment capable of being rendered on all, though the pleas to each were different.- — 1 Chit. PI. 222. Under the statute, it is the nature of the cause of action — contracts, express or implied, for the payment of money, whether under seal or not — which is the criterion, by which the propriety of the joinder is to be determined. The statute applies only to actions upon contracts, and has no reference to actions ex delicto. The rule of the common law, that counts ex contractu can not be joined with counts ex delicto, is unchanged; and such joinder, if taken advantage of by demurrer to the entire complaint, assigning it as the specific cause, is fatal, though each count is in itself unobjectionable.— Walker v. M. D. & F. Ins. Co., 31 Ala. 529 ; Shotwell v. Gilkey, Ib. 724.

When a party has an election, on the same facts, to sue in tort or contract, under our statutory system of pleading, it is often matter of unmixed difficulty to determine whether a particular count is to be regarded as in form ex contractu oleo; delicto. A common carrier may be sued, for a breach of the contract to carry and deliver safely, or in case for a neglect of the duty resting upon him, or, sometimes, in trover for a conversion. If the contract is stated, the question arises, whether it is stated as matter of inducement, or whether it is intended to count upon its breach. The facts averred would be substantially the same. So, when a party has the right of waiving the tortious conversion by sale of his goods, and suing as upon an implied contract for money had and received. The common count in assumpsit, if he waives the tort, would be generally sufficient. But he may deem it necessary to unite a special count, averring the particular facts. This, of course, would embody every fact he would be bound to prove in an action of trover for the conversion, except the value of the goods; of which, the price for which they sold would be admissible evidence. It is from the facts stated in the body of the count, the question must be determined ; and when these indicate that the plaintiff is proceeding for a measure of recovery adapted only to the one form of action, it must be intended that the count belongs to that form of action, whether it is ex delicto or ex contractu.

The seventh and eighth counts only are supposed by the argument, and insisted on by the counsel for the appellants, as being in tort, and creating a misjoinder. Stripping these counts of much irrelevant matter, rendering them prolix, and embarrassing their construction, the gravamen alleged in each is the wrongful sale of the cotton, with the knowledge, on the part of the defendants, that it had been transferred to the plaintiff, and the refusal, on request, to pay plaintiff the proceeds of sale. The owner of goods, if a wrong-doer by sale converts them into money, or into that which is received as the price and the equivalent of money, may waive the tort, and recover the money or the price. — Fuller v. Duren, 36 Ala. 73. The recovery would be limited to the price received, or agreed upon, without regard to the value of the goods; while, if he sued in trover for the conversion, the value of the goods, whatever may have been the price for which they were sold, would be the measure of damages. These counts, claiming to recover only the proceeds of the sale of the cotton, and deducing the liability of the defendants from the failure and refusal to pay them to the plaintiff, are ex contractu, and not ex delicto.

It is insisted in support of the demurrer to the first, fifth, and sixth counts, that they seek to charge the defendants, either as acceptors of the bill drawn by Clisby, or upon a promise to accept it, made before it was drawn; and it is not averred the acceptance was in writing, or that the promise to accept was in writing, and unconditional. Ey the law-merchant,in the absence of a statute otherwise providing, an oral acceptance of a bill of exchange will bind the acceptor. A recent writer has thus expressed the result' of the authori ties : “ According to the law-merchant, an acceptance may be (1) expressed in words; or (2) implied from the conduct of the drawee. (3) It may be verbal, or written. (4) It may be in writing, on the bill itself, or on a separate paper ; and a telegram has been held to be a sufficient acceptance. (5) It may be before the bill is drawn, or ciftenuards.” — 1 Dan. Neg. Ins. 371. As to the effect of a mere verbal promise to accept a non-existing bill, communicated to, and upon the faith of which the holder was induced to take it, there is a contrariety of decision in the courts of this country. The conflict is rather as to the effect, than as to the validity of the promise. In Kennedy v. Geddes, 8 Port. 263, a general, indefinite, verbal promise to accept, made to the person taking a bill subsequently drawn, was held not to amount to, and incapable of being declared upon as, an actual acceptance of a particular bill. The case returned to this court, the declaration having been amended by adding a count upon the promise. The court recognized the distinction, stated in Boyce v. Edwards, 4 Pet. 122, “ between an action on a bill, as an accepted bill, and one founded on a breach of promise to accept,” &c. “ The evidence necessary to support the one or the other, is materially different. To maintain the former, the promise must be applied to the particular bill alleged in the declaration to have been accepted. In the latter, the evidence may be of a more general character, and the authority to draw may be collected from the circumstances, and extended to all bills coming fairly within the scope of the promise.” The acceptor of a bill of exchange, as between the several parties to it, drawer, payee, indorser, and indorsee, prima facie is the party primarily liable. His engagement to accept is not a promise to answer for the debt, default, or miscarriage of another, but to assume only his own separate, independent liability, for which the drawer promises to answer, if he makes default, and notice of the default is given; and the indorser promises to answer, if acceptor and maker are in default, and he has notice. — Kennedy v. Geddes, 3 Ala. 581.

The statute has declared since, that an acceptance of a bill of exchange, unless it is to be implied from facts not entering into the present ease, must be in writing, signed -by the acceptor, or his agent; and that an unconditional promise, in writing, to accept a bill, before it is drawn, amounts to an actual acceptance. — Code of 1876, §§ 2101-02. These statutes may now render invalid all verbal acceptances of bills, and verbal promises to accept non-existing bills, except in favor of a party who, on the faith of such promise, has negotiated a bill, and whose rights are saved, as they exist under the law-merchant, by a subsequent section of the Code.— Code of 1876, § 2104. But as, under the law-merchant, a verbal acceptance, or a verbal promise to accept a non-existing bill, was valid, the operation of the statutes is directed to the form of the contract. The rule of pleading, recognized by the authorities, is, that where a verbal contract is valid in the absence of statutory inhibition, it is not necessary, in declaring upon a contract of that kind, to aver whether it was written or unwritten. The statute intervening, and pronouncing it invalid if not in writing, upon a proper issue being formed, the plaintiff will fail, unless it is shown to have been written. — 1 Ohit. FI. 244; Chalie v. Belshaw, 6 Bing. 529. The rule has been often recognized in this court, in reference to contracts within the statute of frauds.- — Brown v. Adams, 1 Stew. 51; Rigsby v. Norwood, 34 Ala. 129. The form of complaint prescribed by the Code, for an action against the acceptor of a bill of exchange, con- • tains a mere general averment that the bill was accepted, not stating that the acceptance was in writing, and is in tacit recognition of the rule.

An acceptance of a bill of exchange, if written upon it, becomes a part of the instrument itself, and is binding according to its legal terms and effect, in favor of all prior or subsequent parties; or, if it be by á separate writing, or (under the law-merchant) if verbal, it has the same operation as if it were written formally on the face of the bill. — 2 Am. Lead. Cases, 318. A collateral, a separate, independent promise to accept a non-existing bill, may, not amount to an actual acceptance; but, when it is communicated to a particular person, who, upon the faith of it, takes a bill to which it is applicable, and which is fairly within the scope of the promise, he is entitled to the benefits of such promise, and may in his own name maintain an action thereon; upon the same principle, that whoever draws bills, oí makes advances, upon a general letter of credit, has a direct, immediate remedy in his own name, against the writer of the letter.— Boyce v. Edwards, 4 Pet. 111; Barney v. Newcomb, 9 Cush. 46; Pollock v. Helm, 54 Miss. 1; Russell v. Wiggin, 2 Story, 213; Murdock v. Milk, 11 Metc. 6; Carnegie v. Morrison, 2 Metc. 6; Ferguson v. Ledyard, 49 Ala. 279. It is not necessary to notice further the demurrers; for, without departing from the principles settled in the authorities to which we have referred, they could not have been sustained.

We pass to such of the assignments of error relating to the admissibility of evidence, as are insisted upon in the argument of appellants’ counsel. The first is in regard to the telegram purporting to be signed by the appellants, addressed to Clisby. The general principle is, as insisted on by appellants’ counsel, that a party is bound to produce the best evidence within his power, of which a fact is capable; and that whenever the original of a writing can be produced, secondary evidence of its contents will not be received; and is as applicable to telegrams as to any other writing'. — 1 Whart. Ev. 576. There is some difficulty in determining whether the message delivered to a telegraphic office, or that which is delivered to the person to whom it may be addressed at the point of destination, is to be regarded as the original. Perhaps, under some circumstances, the one or the other may be considered the original. It is not now necessary to enter on that inquiry. If the message as it was delivered to, and may be preserved in the office of the telegraph company at Philadelphia, is to be regarded as the original, it was without the jurisdiction of the court, as was its custodian. It is a settled rale of evidence in this country, that if writings, necessary as evidence in a court of one State, are in the custody of persons residing in another, secondary evidence of their contents will be received.— Burton v. Driggs, 20 Wall. 134; Beattie v. Hilliard, 55 New Hamp. 428; Binney v. Russell, 109 Mass. 55; Shorter v. Sheppard, 33 Ala. 648; 1 Whart. Ev. § 130. Not only was the original — taking the view of appellants’ counsel as to which paper was to be regarded as the original — without the State, but the appellants had voluntarily admitted to Peck the genuineness of the dispatch offered in evidence, and the admission entitled it to be received. — 2 Whart. Ev. §§ 1091-3.

The evidence of Saville was simply redundant, or superfluous. The telegrams, in relation to which he testified, were properly admitted, in connection with the evidence of Peck, that he had showed them to appellants, and they had admitted their genuineness. It is, at most, error without injury, to receive illegal evidence which is merely redundant. — Bishop v. Blair, 36 Ala. 80; Jemison v. Dearing, 41 Ala. 283.

If it was material that it should have been shown the cotton purchased by Clisby was of the quality he was authorized to purchase, we can perceive no sound objection to his evidence in reference to the samples sent the appellants, when taken in connection with the evidence of Peck, that they were exhibited to him by the appellants, accompanied by the tacit admission that they were of the quality of the cotton Clisby had shipped them. The bill of lading and draft were parts of the transaction the suit involves, and there was no error in admitting them in evidence. Nor can we see that there was error, in receiving evidence of previous transactions between Clisby, the appellants, and the appellee. The course of dealing, or of business between parties, in similar transactions, is usually received, as furnishing the basis of a presumption that it was intended to be observed, save so far as by agreement they may have departed from it, in the transaction in controversy. — McKenzie v. Stevens, 19 Ala. 691. The evidence of the custom with cotton-buyers in Montgomery, to regard an order to purchase at particular prices of force until revoked, w'as redundant. Whether such a custom can be regarded as valid, enlarging indefinitely the authority given by the principal, we do not now consider. There is no controversy about the fact that the cotton was purchased by Clisby, shipped to and received by defendants, without objection by them as to the time of filling the order. Acquiescence in, and ratification of the purchase, so far as time was a material element, must, then, be imputed to them.

It is certainly true, that a motion to suppress the answer of a witness wdiose deposition is taken, on the ground that it is not responsive to the interrogatory, must be made before the trial is commenced, and can not be entertained during its progress. — Park v. Wooten, 35 Ala. 242; Nelson v. Iverson, 24 Ala. 9. But the objection to that portion of the answer of the witness, Whilden, which was excluded, was not rested solely upon the ground that it was irresponsive, but also upon the ground that it was “ othenuise illegal.” Its inadmissibility and illegality are apparent upon its face; and the practice is well settled, that illegal, irrelevant evidence, may be assailed by a general objection, and excluded at any stage of the proceedings. — 1 Brick. Dig.' 887, §§ 1189-90.

It may be, the charges requested by the appellees, grouping all tbe facts tending to establish a right of recovery, in either of the aspects in which the case was presented by the special counts of the complaint, are so framed that the jury may have been confused and misled, and could without error have been refused. The giving such charges, when they do not assert incorrect legal propositions, rests largely in the discretion of the primary court, and will not avail to reverse the judgment. The party apprehending injury from them, must request explanatory charges, curing their tendency to confuse and mislead. — 1 Brick. Dig. 34A, §§ 129-30.

A specific objection to the first of these charges is, that it asserts the appellee had a right of recovery, though the cotton purchased by Olisby may not have been of the grade or quality specified in the telegram of appellants to him, and though purchased at a higher price than that specified. The second charge is assailed, because it is silent as to the time of Olisby’s purchase. It was not incumbent on the appellee to inquire whether the cotton was of the quality, or had been purchased at the prices specified. These were matters submitted to Clisby’s judgment and discretion; and for his fidelity and diligence in reference to them, he is responsible to the appellants. When he proposed drawing on the appellants, for the money to pay for the cotton, the act was a representation to third persons, dealing with him in good faith, that the cotton was of the quality and cost he was authorized to purchase. Upon this representation the appellee had the right to rely. It was of facts necessarily and peculiarly within his knowledge, and binds the appellants, as the admissions of an agent, while executing his authority, bind the principal. — Wharton on Agency, § 158, n. c. §§ 256-263.

The question of importance, presented by the instructions requested by the appellants, is, whether the letter and telegram of appellants, upon the faith of which the fifth of these instructions admit the bill was purchased by the appellee, are, within the meaning of our statute, an unconditional promise in writing to accept a bill before it was drawn, which can be enforced. Upon this question we have not doubted. No form of words, no particular expressions, are necessary to constitute an acceptance of a bill of exchange. A promise to pay, to honor, or to settle, or any declaration by the drawees indicating plainly the intention to comply with the request of the drawer, has been deemed sufficient to constitute an acceptance, when the acceptance could be made orally. The statute requiring that it shall be made in writing, simply changes the mode of proof, without changing otherwise this rule, and the words or expressions which would constitute an oral, will constitute an acceptance in writing. Nor are any particular phrases necessary to constitute a promise to accept. Whatever form of words may be employed, if, when fairly interpreted, they manifest clearly a promise to accept a bill thereafter to be drawn — an absolute, as distinguished from a conditional promise — satisfies the statute.

The promises are in writing; first in the letter, that if the appellants, on being informed of the price of cotton, saw a margin, they would authorize Clisby to draw for the cost. Then, after being informed of the prices, the promise by telegram is to advance the cost. The language of the letter and telegram will not admit of any other just interpretation, than as conferring authority upon Clisby to draw on the appellants for the money to purchase cotton of the quality and at the prices specified. — Bank of Michigan v. Ely, 17 Wend. 508; Ulster County Bank v. McFarlan, 5 Hill, 432; Johnson v. Clark, 39 N. Y. 216. It would be thus read and understood by the commercial world, who were invited and expected to deal with Clisby upon the faith of it. The terms of the writing are absolute, not conditional. Cotton of a particular quality is to be purchased, at a particular price.' This is, however, a matter which is referred to the judgment and determination of Clisby, and not to the judgment and determination of those dealing with him. If upon them was cast the duty of supervising his conduct in this respect — if they could not rely on his representations — the authority would not avail for the purpose for which it was given. There would be but few, if any, who would act upon it, if it was at the peril of being responsible for his judgment and determination in reference to the quality and price of cotton. If he has abused the discretion committed to him by the appellants, they must look to him for indemnity. Their obligation to the appellee can not be avoided, unless notice of his indiscretion was imputable, of which there is no pretense. — Bank of Michigan v. Ely, supra. Standing in the relation of acceptors, the appellants were the principal debtors; and no presentment for payment, or for acceptance, was necessary to fix their liability.

Charges requested, based partly or entirely on a state of facts of which there does not appear to have been evidence, are abstract, and should be refused. — 1 Brick. Dig. 338, § 40. We do not understand from the evidence that the appellee advanced Clisby money to purchase cotton, relying upon the cotton as security. The money was advanced upon the bill of exchange, and upon the faith of appellants’ promise to accept and pay it. Whatever right or interest in the cotton may have been claimed by the appellee, was under an arrangement with Clisby subsequent to tbe refusal of tbe appellants to pay tbe bill, and was intended to secure its payment.

We have considered each of the numerous assignments of errors, and have but to add, that the judgment must be affirmed.