Hughes v. Heyman , 4 App. D.C. 444 ( 1894 )

Mr. Justice Morris

delivered the opinion of the Court:

Two questions are raised by the record in this case: First, whether the appellant, the guarantor, was discharged from his liability by reason of any failure on the part of the appellee to give him due notice of the default of the principal obligors, and, second, whether it was error on the part of the court below to instruct the jury as it did with respect to the right of Heyman, the appellee, to make application of the goods delivered in default of such application by the vendor.

1. The condition of facts disclosed in this record does not warrant the instruction requested on behalf of the appellant, apart even from any general rule of law on the subject. John Q. McAfee testified on behalf of the defendant that his firm failed and made its assignment on November 10,1891 ; and the defendant himself testified that Heyman had notified him of the default on October 14, 1891, which he says was “three weeks after the failure of McAfee Brothers.” If he is correct in his date, it was nearly four weeks before the failure of McAfee Brothers. Heyman, in his testimony, says it was “ about the 11th day of November.” Assuming that the defendant intended to say November 14, and not October 14, as the time at which he was notified, the instruction requested would have involved a serious error of fact even in that case. For it would be only three days, and not fourteen days after the failure and assignment. We cannot infer from anything in this record that there was an unreasonable delay on the part of the appellee in giving notice to the guarantor of the default of the person primarily liable.

But it is well settled in the law of guaranty that “ an unreasonable delay in giving notice, or a failure to give it altogether, is not of itself a bar to recovery;” and that “both the laches of the plaintiff and the loss of the defendant must concur to constitute a defense.” It is likewise the law, that only to the extent of the damage suffered by him is the defendant discharged. Davis v. Wells, 104 U. S. 159 ; Kent’s Commentaries, Part V, p. 124, and notes. There is nothing whatever in this case to show that the appellant had suffered any loss, either partial or total. The assignment of the principal obligors, without any proof of the extent of their assets and liabilities, cannot be regarded as evidence of any such loss.

In a case in the State of Maryland, growing out of one of these same transactions, in which Heyman, the appellee in this cause, sued Dooley and Thalheimer, on account of their guaranty of the contract of July 29, 1891, the Court of Appeals of that State, in an elaborate opinion delivered by Mr-Justice Robinson, held that guarantors in such cases were not entitled to any notice whatever, and that a contrary opinion announced by some courts was based upon a misapprehension as to the applicability of the mercantile law regarding negotiable paper to transactions of an entirely different character. Heyman v. Dooley and Thalheimer, 77 Md. 162. Upon this point we need not here express an opinion; for we regard the question as sufficiently disposed of by the other considerations that have been stated.

2. While, in view of the decision of the Supreme Court of the United States in the case of The National Bank of the Commonwealth v. Mechanics’ National Bank, 94 U. S. 437, in which it is laid down as the law that “neither of the parties can make application of payments after a controversy upon the subject has arisen between them, and a fortiori not at the trial,” the portion of the charge of the court, to which exception was taken by the appellant, is open to criticism, yet the error, if error under the circumstances there was, is not subject to review by us. The appellant has precluded himself from having a review of that alleged error by the sweeping character of his exception. The exception is too broad. A whole paragraph is taken together and made the subject of one single exception. That paragraph includes statements of fact and statements of' law that are not in themselves objectionable, and some statements that are highly favorable to the appellant. The court assumes in that paragraph to state both the theory of the plaintiff and that of the defendant on this point of the application of the goods that were delivered: and it is not pretended that the law is not correctly stated with reference to the hypothesis on which the defendant’s claim is based. The alleged error occurs merely with reference to the plaintiff’s theory of the case. And yet the whole paragraph is blended and subjected to one undistinguishing objection.

Now, it is the general rule that an appellate tribunal cannot regard a general exception taken to a whole charge. White v. Barber, 123 U. S. 392. It is also the general rule that, when a series of instructions has been given and exception is taken to them all in bulk, and it appears that any one of the series contains a correct proposition of law, the exception cannot avail. Harvey v. Tyler, 2 Wall. 328 ; Lincoln v. Claflin, 7 Wall. 132 ; Cooper v. Schlesinger, 111 U. S. 148 ; Mobile, &c., RR. Co. v. Jurey, 111 U. S. 584. In the case of Lincoln v. Claflin, supra, the Supreme Court of the United States said: “The charge embraces several distinct propositions, and a general exception cannot avail the party, if any one of them is correct.” And in the case of the Mobile, &c., RR. Co. v. Jurey, supra, the same tribunal, referring to the decision in Lincoln v. Claflin, and reaffirming the same, said : “ The charge contained at least two propositions. . . . It is not disputed that the first proposition was correct. But the exception to the charge was general. It was therefore ineffectual. It should have pointed out to the court the precise part of the charge that was objected to.” And the court cites with approval the case of Jacobson v. The State, 55 Ala. 151, in which the rule is thus laid down: “The rule is that the matter of exception shall be so brought to the attention of the court, before the retirement of the jury to make up their verdict, as to enable the judge to correct any error, if there be any, in his instructions to them.” And it cites with like approval the statement of the rule by the same Supreme Court, of the State of Alabama, in the case of Railroad Co. v. Jones, 56 Ala. 507, as follows: “When an exception is reserved to a charge which contains two or more distinct or separable propositions, it is the duty of counsel to direct the attention of the court to the precise point of objection.”

In view of these controlling authorities, we are compelled to hold that the appellant’s exception to an entire paragraph of the charge of the court in this case, which contains several separable propositions of law, some of them unquestionably correct, was not properly taken and cannot be considered by us.

But there is another consideration that.might well- control this point. The alleged erroneous ruling does not seem to have prejudiced the appellant. There was no question in the case as to an application of the goods at the time of trial, or at any specified time after their delivery. The issue was between the claim of the McAfee Brothers that, at the time of delivery, they had stated and had given orders to their driver to state, that the delivery was on account of the secured •contracts; and the claim of the appellee that no instructions had been received by him from the McAfees as to the contract or contracts to which the delivery should be applicable, and that he had therefore made the application himself of 200 cases to the liquidation of the unsecured contract, and of 100 cases to the two secured contracts. The statement of the court below, therefore, that, in the absence of application by the McAfee Brothers at the time of delivery, Heyman might make the application. himself as he thought proper, either then, or at any time down to the trial, or at the very trial, was no more than the enunciation of an abstract proposition of law that had no bearing upon the controversy then pending before the court. It does not appear that it could have misled the jury.

It will be noticed that the 200 cases provided for in the first or unsecured contract were to be delivered in September, 1891; and the 300 cases in the contract here sued on were to be delivered “ on or before October 15, 1891.” The 300 cases actually delivered, were delivered, it appears, one half in September and one half in October. It might well be questioned whether the McAfee Brothers had any right to make application of any part of these goods on the second contract before the first contract was fully performed. If, in pursuance of the opinion of the Supreme Court of the United States in the case of The National Bank of the Commonwealth v. Mechanics’ National Bank, 94 U. S. 437, already cited, both parties had failed to make the application, and the occasion had arisen for “ the law to make the application according to its own notions of justice,” it is not apparent that the law would have done otherwise than direct the application which the appellee claims that he actually made.

On the whole, we do not find any error in this cause for which the judgment should be reversed; and we therefore affirm the judgment, with costs.