Hinsdale v. Eells , 3 Conn. 377 ( 1820 )

Peters, J.

This declaration contains three counts, for three distinct sums of money received, by the defendant, at three different times, for the use of the plaintiffs, and raises therefrom three separate promises, at the date of the writ. In support of this declaration, the plaintiffs were permitted to give in evidence, an instrument in writing, signed by the defendant, in these words : “ Cash received of J. and D. Hins-dale, at various times, and which I am to pay them on request ;

May 4th, $250

June 10th, 150

“ “ 150

June 22nd, 101.68

651.68

Six hundred and fifty-one 58-100 dollars. July 20, 1819.

Samuel Eells, 2nd.”

If admissible to prove either count, the decision below was correct. All actions of this sort are grounded on promises, express or implied. In one case, the promise must be proved as alleged ; in the other, the consideration only, and this proves the promise, if laid as the law raises it. When one man has the money of another, though received at different times ; was it ever known that the law raised several promises at once ? Is it not rather a promise to pay'the whole debt ? Otherwise, a merchant, who sells various articles, at various times, and charges them on book, may maintain assumpsit for each article, and lay all the promises at any time subsequent to the delivery of the last article ; although the books have been footed, the balance struck and subscribed by the ^debtor, under an express promise to pay it. Such a practice would be sport for one class of citizens, but death to another!

But admitting that this writing furnishes evidence of anim-plied promise only; it supports neither count in this declaration, but would be proper evidence on a count upon an msi-mul computassent. In May v. King, Bul. N. P. 129. upon as-sumpsit for work and labour, and money lent, it appeared, that there had been mutual dealings ; that the parties had come to an account; that the defendant was found indebted, and promised to pay the balance. The plaintiff was non-suited, because there was no count upon aninsimul computas-sent. And in Styart v. Rowland, 1 Show. 209. [215.] it appeared, that the defendant and plaintiff’s wife had reckoned ; that the defendant had borrowed at one time 40s., at another time 40s., and at another time 4/. amounting to 8/.; and that he promised to pay it. This was holden to be good evidence of one promise, but not of three promises.

When a party has a remedy of a higher nature, he must found his action thereon ; and indebitatus assumpsit cannot be supported where there has been an express contract. 1 Chitt. Plead. 95. Weaver v. Boroughs, 1 Stra. 648. In Bulstrode v. Gilburn, 2 Stra. 1027. which was for money had and received, the defendant had entered into articles to account, and it was decided, that assumpsit would not lie, because the plaintiff had a remedy of a higher nature. These articles were, indeed, sealed; but surely, at the present day, the omission of a wafer cannot destroy the effect of a written stipulation.

The case of Smith v. Allen, 5 Day, 337. decided by this court, in November, 1812, cannot be distinguished from the present. It was an action in the common form of an action on a promissory note. The writing declared on was in these words : “ Due John Allen, 94 dollars, 91 cents, on demand.” This certainly contains no more evidence of a promise, than the writing under consideration; but the court sustained the action; for which I can offer no better reasons than were given by Judge Smith, in delivering the opinion of the court. “ Where a writing contains nothing more than merely an acknowledgment of a debt due, it does not, in legal construction, import an express promise to pay. From sucha writing, it would not appear, that the parties meant it should be paid. Their intention might be, in such case, merely to settle the amount by writing, with a view to some further dealings. But where a writing imports not only a debt due, but an express agree-menttopay, this amounts to an express contract. From the writing in question, it is perfectly manifest, that the debt due was to be paid on demand, as fully as if the words, “ to be paid,” or “ I promise to pay,” had been inserted next béfore the words “ on demand.” But the case of Shelton & al. v. Darling, 2 Conn. Rep. 435. seems to remove all doubt. That was assumpsit by the indorsees of a bill of exchange, accepted by the defendant, as agent, in fraud of his principal, though within the scope of his agenCy. Counts were added for money had and received, &c. But said the late Chief Justice and seven of his brethren, quorum pars magna fuimus, “ While a party holds an instrument as security for his debt, he cannot resort to the action of indebitatus assumpsit for money had and received; for the express written contract extinguishes the implied one, and the plaintiff is as much precluded from bringing this action against the defendant, as against the Commission Company; for they hold a valid instrument to secure the money, which they seek to recover in this action. The plaintiffs, then, cannot be entitled to recover on either of the indebitatus counts. They cannot Recover on the count for the bill of exchange ; for that was never accepted, by the defendant, in his private capacity.”

Having no doubt on this point, I give no opinion on the other.

I advise a new trial.

Bristol, J.

The declaration contains three counts for money, received by the defendant of the plaintiffs, at different times. The plaintiffs offered in evidence, an acknowledgment, subscribed by the defendant, that he had received the various sums of money, specified in the different counts, at the times stated in the declaration. The defendant claimed, that this testimony was improperly admitted.

It seems an undeniable principle of the common law, that if A. lends money to B., at different times, and in different sums, each loan of money constitutes a distinct contract, and that the lender may maintain as many suits against the borrower, as there are distinct loans. This principle is too obvious to need the aid of any authority. The contract created by each loan, is as distinct from that created by any other loan, as it would be, had each loan been separately secured, by a distinct bond, or promissory note. If separate suits could have been brought upon each bond or note, had these securities been given, it is equally certain, that a distinct suit may be maintained upon the contract, arising out of each loan, where no security is taken by the lender..

Although the plaintiffs might have brought separate actions for each distinct loan, they are not compellible to do it, and thereby subject either themselves, or their adversary, to this unnecessary expense : they may unite the whole in one declaration, by means of different counts; and where suits are multiplied unnecessarily, the court may, at their discretion, compel a consolidation, and oblige the offending party, or his attorney, to pay the costs. This is done, not on the ground that separate suits are unlawful, or cannot be maintained, but on the ground that the plaintiff is attempting to enforce his rights, in a manner which is unnecessary and oppressive. The plaintiffs, in the present case, have not been guilty of this oppression : and if separate suits might have been brought, it follows, that the present declaration, containing different counts for distinct loans, may be well sustained. In this view of the case, there seems to be no well-founded objection to the testimony in question.

It is said, that the different loans of money, and the contracts arising out of them, have been “consolidated,” by the writing in question ; and that the action either ought to have been brought on the agreement, or should have been an action of indebitatus assumpsit for the aggregate amount of the different loans. There is no principle of law to warrant this claim. It is true, that simple contracts may be merged, by accepting securities of a higher nature; and unless this is meant by what the counsel choose to call “ a consolidation of the dijfeient loans,” I know not what is intended. Thus, a promissory note, if it is a simple contract, is merged, by taking a bond, including the contents of such note. One simple contract, however, is never merged, by the acceptance of another simple contract. It may, indeed, operate to suspend or modify it; as where a promissory note is taken for goods sold and delivered, no action can be brought for the goods, till the note falls due : because the vendor, by taking the note, has agreed to extend the credit till that time,

It is true, that in Connecticut, notes not negotiable, given for valse received, have been considered specialties, as much as bonds under seal, or the most solemn instruments. The real question is, whether the writing in question is a specialty, and whether the plaintiffs, by taking it, have merged the original cause of action ?

The object of the writing cannot be mistaken. Neither party had any idea of entering into any new contract, or of giving or taking any new security. It seems to me, to be a mere acknowledgment of pre-existing debts, and of the defendant’s liability to pay them. It is sufficient, on this point, to observe, that such a writinghas never been embraced within the class of specialties, by any practice, or judicial decision : and were it to be so considered, the loosest memorandum, signed by a party, furnishing evidence of a pre-existing debt, would be placed on the same foundation, with the most solemn instruments known to the law. We ought to proceed no further on this road, than former practice, and judicial decisions, require us to travel : and while it is proper, on the one hand, to treat notes for value received, not payable to order, as specialties, it would, on the other, be extremely dangerous to give the same privilege to a writing like the present.

The evidence offered by the defendant, was properly rejected. From the whole evidence, it is apparent, that the defendant lent the plaintiffs his notes, to enable them to raise money at the Eagle bank. In consequence of this transaction, the plaintiffs are bound to see that these notes are paid, and to indemnify the defendant against them. But the defendant agreed, in consideration of the loan made him by the plaintiffs, that he would repay the money on demand. Nothing can be inferred from the testimony offered, that the plaintiffs were bound to wait for their money lent to the defendant, until they had actually taken up and cancelled the notes negotiated at the Eagle bank. On the contrary, instead of making this a condition precedent to the plaintiffs’ right to reclaim the money lent, that money is to be repaid on demand, and the defendant consents to trust the plaintiffs’ responsibility, to protect him against the payment of the notes. Having consented to this, it is too late for him to ask the court to interfere in his behalf, and protect him from what, he now considers, the improvidence of his own contracts.

Br.unard and Chapman, Js. were of the same opinion. Hosmer, Ch. J., being related to one of the parties, gave no opinion.

New trial not to be granted.