Pope v. Nance ex rel. Lucas , 1 Stew. 354 ( 1828 )

By JUDGE GAYLE,

after stating the facts.

The first point insisted on is, that the failure of Lucas to offer to return the note received in payment to Pope, within a reasonable time after Turner alleged it was a forgery as to him, discharged the plaintiffs in error from their liability; and that he ought to have offered to return it before he sued Turner. On this point, the second charge of the Court below was given, as stated in the bill of exceptions.

The plaintiffs’ counsel requested the Court, in addition to that charge, to instruct the jury, that if the note was received in payment and was not offered to be returned in a reasonable time after it was heard that Turner said the signature as to him, was a forgery, the plaintiffs could not recover; and also, that they could not recover if no offer was made to return it before suit was commenced against Turner. It is obvious that this last proposition Was too broad, and ought not to have been acceded to by tbe Court. It cannot be perceived bow the bringing oí' a suit against Turner could affect the interest of Pope an(j Hickman. If the offer to return in a reasonable time had been made, it was immaterial to them what measures had been commenced against the makers ; for they could not have interfered with, or had any influence upon the steps they might think proper to adopt for their own security. The suit might have been commenced, and the note have been returned on the same day.

The principle assumed then in the other part of the request of the plaintiffs’ counsel to charge the jury, is, that the return or offer to return in a reasonable time, must be made without the exception laid down by the Court, to wit: that if the plaintiffs in error have received no injury from a failure to return, they cannot make such failure the ground of objection. In the case of Clark against Young & Co. ^a it was held that suit might be brought against the person of whom thenote of a third person was received before the return of the note, and the principle is recognized that there was no necessity to return it on account of the insolvency of the maker. The case was this: Clark purchased of Young & Co. a quantity of salt, and at tbe time of the delivery, endorsed to them a note on one Mark Edgar. Young & Co. instituted a suit against Clark as the endorser, and a verdict was found for the defendant; whereupon they sued on the original contract and recovered. The note was not returned before the bringing of the second suit. Edgar was reported insolvent, and although Clark was entitled to the benefit of the note, the Court said there was no necessity for an offer to return it even before the commencement of the last suit. In this case it is apparent that the reason why a return was not necessary was, because on account of the insolvency of the maker, there could be no injury to the endorser. The case of Johnson against Weed, ^b was where a note was given in payment of goods. It was doubtful whether it w as received as a payment. Before it became due the maker proved insolvent, and the plaintiff recovered on the sale of the goods. No offer to return the note appears to ha\ e been made. In Puckford against Maxwell, ^c a draft was given in payment of a precedent debt, and being dishonored, was treated as a nullity. If the drawer had had funds in the hands of the drawee, notice would have been necessary; but having none, he could receive no injury for want of it. '

In these cases the principle is established that the return of a note is unnecessary, whether it be received in payment or not, if the failure to return could be of no injury to the person by whom it was put off. There is no difference in the reason of the thing, between the note of a third person and a bill of exchange or draft. In the latter case, the notice of dishonor is necessary to enable the drawer to protect his own interest, but where his interest cannot be affected for want of notice, it is not necessary. This principle was expressly laid down bv this Court in the case between these parties, at the last July term. The Chief Justice then says in substance, that the offer to return was unnecessary, if it would visit no injury to the party. On this point, the plaintiffs’ counsel has relied upon an expression of Mr Justice Story in the case of the United States’ Bank against the Bank of Georgia. He there states that “any neglect will absolve the payor from responsibility.” It is apparent that the exception stated by the Court was not in his contemplation ; if it had been, there is no doubt he would have added it.

But there is another view of this subject which must be conclusive. Admitting that the principle contended for by the plaintiffs’ counsel is correct, it could not control this question. The evidence shews that Pope, from the earliest suggestion of doubts as to Turner’s signature, resolved not to pay the debt in any event. He shewed some anxiety to have the suit against the makers well conducted, but disclaimed all liability or intention of being bound by the original contract. This was known to the agent of Lucas, for he was present at the time. Of what avail then, would have been an offer to return ? 1’he law does not require an act to be done which would be useless in itself, which doubtless would have been the case here.

in addition to this it may be remarked that, under the circumstances, Lucas may not have conceived himself authorized to return the note; for the better opinion seemed to be, when suit was commenced, that the signature of Turner was genuine. ■ It was the impression of those who examined it, that it was no forgery, and of Pope among the rest. He did not admit ¡the fact of fpr-gery, but on the contrary denied it; and until it was es-< tablished in some legal way, Lucas could have no ground rQr a recovery on the original consideration. Pope, there-forCi having notice of the suit and of the matter to be tried, and not consenting to, but denying the forgery, cannot complain of a failure to return the note. It was the best mode of ascertaining the forgery, and was of itself a good excuse for Lucas’ not returning the note. The suit was in fact as much for the benefit of Pope as of Lucas.

The second point raised in the argument by the plaintiffs’ counsel is, that the act of Lucas in receiving the note in payment, after he knew of the dissolution of the partnership, extinguished the partnership debt of Pope and Hickman, and it could never afterwards be revived without the express consent of Hickman,

There can be no doubt that if the note had been what k purported to be, Hickman would have been entirely-discharged. The true question here is, whether it was such a contract as threw the burthen of its liabilities exclusively on Pope, so as to protect Hickman from any recourse on him ? The cases, which have been referred to by the plaintiffs' counsel are, most of them, belonging to that class which releases the partner from his partnership debts when the individual note of another partner has been received in payment. This is acknowledged to be correct as to partners -generally, and will apply with greater force to a retired partner. This rule is clearly and positively laid down by Lord Kenyon, in the case of Evans against Drummond, He says emphatically that it is not '‘to be endured, that w.hen partners have given their acceptance, and when perhaps one of the two partners has made provision for the bill, that the holder shall take the sole bill of the other partner, and yet hold both liable.” But the question here is, whether by the contract Lucas relinquished his claim against the partnership ?

In the case of Jones against Ryde, it was held “ that a person who discounts a forged navy bill for another, who passed it to him without knowledge of the forgery, may recover back the money, as had and received to his use, upon failure of the consideration.” Heath Justice said, “ if a person gives a forged bank note, there is nothing for the money; it is no payment. In the same case it was •said, “ a man takes this security, looking to the persons who are to pay it; he takes it on the presumption that it is a navy bill. It was not what it purported to be.”

The case of Markle against Hatfield, ° is more in point, and in principle, more nearly assimilated to this case than any which has been read from the bar. Chief Justice Kent reviewed with the clearness and discrimination, for which he has been so justly distinguished, the doctrine as it is now settled, in the cases of payment in negotiable paper. He shews that in transactions of this kind, there is no difference between a bank note and the note of a third person. The forgery of either is the same thing to the party receiving it. He is equally unsuspecting and ignorant as to its genuineness, and having received a private note instead of a bank note, and as a substitute for it, there is no reason that he should be held to risk its forgery. In the language of the Judge just alluded to, the plaintiffs below parted with their just demands on the defendants, without receiving what was intended. The note was not what it purported to be, and was in fact no payment. The contract between the parties was, that the note should be paid by the note of Hutchings & Co. and Simon Turner, endorsed by Harris. Was any such payment made? How can Lucas be bound by a contract which was not executed on the other side ? and how can they claim the benefit of it in the very face of a failure on their part, of a compliance? The situation of Hickman being a retired partner, can make no difference. He has never been discharged from his liability as one of the firm. The analogy traced by the plaintiffs’ counsel between this case and those of deeds with warranty of title to property, is not perceived. The deed is genuine; the obligation it imposes on the parties to it are not illusory, and the purchaser relies on those obligations. The deed is what it purports to be, and it is held as an indemnity against the want of title. If the deed be forged, then the resemblance appears, or if Pope had given his own note in payment, the cases put by counsel would be more analogous.

The third position assumed by plaintiffs’ counsel is, that the testimony of Turner on the trial, ought not to have been admitted, because he was directly interested in establishing the forgery of the note. This point and the next, to wit, that the record of the trial between Lucas and Turner was inadmissible, will be considered to* gether.

\?p e think the principle involved in this part of the case t00 weq settled to be now questioned. Pope was duly notified of the pendency of the suit;, was applied to for instructions as to the witnesses to be subpoenaed, and was interested in the issue to be tried. It was upon the successful termination of that suit that his liability to Lucas was to be at an end. The case of Kip against Brigham et al. is similar to this. The sheriff was sued for an escape, and a recover}’ had; he gave notice to the securities of the debtor for the jail bounds. In a suit against said securities, the record was held admissible and conclusive. Turner, therefore, having no interest in the suit, was a competent witness, and the temptation he may have had to swear falsely could only go to his credit.

The admissibility of evidence to prove the forgery of the name of Harr is, the endorser, was objected to in the argument, though not noticed in the brief. It was said that by our staiute he cannot be discharged from his endorsement, unless he denies it on oath. The statute in this respect has placed promissory notes, &c. on the footing of sealed instruments, and forgeries of every kind are permitted to be proved in this way.

In the examination of this case, the Court have not thought it necessary to advert to all the arguments made by the counsel by way of illustration; but have confined themselves exclusively to the points which they believe should govern,the case. They have been relieved from much labor of investigation by the very able argument of the counsel of both sides.

By JUDGE CRENSHAW.

In this case I have not been able to come to any satisfactory and conclusive opinion, and therefore do not undertake to dissent from the judgement of the Court. I am, however, inclined to think that unless fraud has been brought home to Pope, he and Hickman cannot be charged, if the note was not returned as soon as it was discovered that it was of no value. But in expressing no dissenting opinion, it is not to be understood that I concur in the judgement of the Court. Judgement affirmed.

Judge White presided below, and did not sit.

a qiCrancii 181.

b os John.r,3io.

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