Owen's Adm'rs v. Ashlock , 9 Port. 417 ( 1839 )

GOLDTHWAITB, J.

The motion of the defendants below, to reject the evidence then before the jury, seems to have been made under a misapprehension of the effect of the proof. The contract for the pledge of the order, does not appear to have been in writing. If the note had been introduced in evidence, it would not have established this contract, nor in any manner explained the transaction between Owen and Ashlock. Neither would it have evidenced the contract by which the Bank discharged the former from his responsibility as endorser, as the evidence before the jury did not prove that the discharge was by matter in writing on the note. There was, then, no reason, in this case, to suppose that the note, if produced, would have shown any of the facts connected with the issue, in a more perfect manner than was shown by the parol evidence. Indeed, the production of the note, would have established no fact whatever, connected with this controversy. There was, therefore, no error in refusing to reject the evidence, because of the non-production of the note endorsed by Owen.

The delivery of the order drawn by the Mayor and Aldermen of the city of Mobile, on their treasurer, constituted, under the circumstances of this case, a simple pledge, which Owen or his personal representatives were authorised to retain until their liability on the endorsement was discharged, and in that event only, had Ash-lock a right to receive it back. Even when the liability ceased, no obligation to pay the amount of the order, was incurred by Owen or his personal representatives, unless the money was actually received by them. If Owen, in his life-time, had converted the order to his own use, he would have become liable in another form of action, or he might have been held liable for the money which came to his hands, but the mere discharge of the liability of Owen on his endorsement, did not impose on him, or his personal representatives, the liability to answer to Ashlock for the amount of the order.

The charge requested by the plaintiffs in error, was less favorable than they might have asked for, as it is questionable if they could be accountable, in this form of action, unless the actual receipt of money, or its equivalent, was shown.

For the error in refusing the charge asked for, the judgment of the County court must be reversed, and the Case remanded.