Brewster v. Frazier , 32 Md. 302 ( 1870 )

Robinson, J.,

delivered the opinion of the Court.

On the 3d of February, 1866, the appellee entered into an agreement with J. Guerard Heyward and Dr. J. W. Kirk, of South Carolina, to plant on their joint account, “Pose Sill Plantation,” for the season of 1866. Dr. Kirk was to furnish the land and medical attendance. Heyward to superintend the planting interest, and the appellee to furnish fifteen hundred dollars during the first month and as much more after-wards to carry on the business as he could procure. To secure the appellee against loss by such advances, Heyward agreed to give him a bond and mortgage on real estate situate in said State. The appellee advanced fifteen hundred dollars, and Heyward executed his bond and mortgage in pursuance of the agreement.

On the 3d of December, of the same year, the appellee placed the bond, mortgage and contract in the hands of the appellants, plaintiffs below, for collection, and took from them the following'receipt:

“Charleston, 3d Dec., 1866.

“ Rec’d from John J. Erazier, Esq., for collection, a bond and mortgage of J. Guerard Heyward to him, dated 12th of Eeb’y, 1866, for sixteen hundred dollars, and also a claim arising under a contract between him and J. G. Heyward and Dr. J. W. Kirk, dated Feb’y 3, 1866, and out of the collections we are to retain the sum of three hundred dollars, which we have advanced to him on the security of said bond and mortgage, left with us, and to remit the balance to said J. J. Erazier.

“Brewster & Spratt.”

At the same time the appellee executed the following promissory note:

“$300. Charleston, 3d Dec., 1866.

“ On the twenty-fifth day of December, 1866, I promise to pay to the order of Messrs. Brewster & Spratt, three hundred dollars, for value received.

“ Jno. J. Erazier.”

He also executed a power of attorney authorizing them to collect the several amounts, due on the bond, mortgage and planting contract, and out of the proceeds thus collected, first to pay the note of $300, and the balance to be remitted to the appellee. Hot being able to realize anything on account of these claims, suit was brought by the appellants on the promissory note of $300.

It is insisted by the appellee, that the receipt, power of attorney and note, constitute an entire contract, by which the appellants agreed to look exclusively to the collections to be made on the bond, mortgage and planting contract, for the payment of the three hundred ¡dollars thus advanced, and that they have no right therefore to maintain this action upon the promissory note.

The question, whether a contract is entire or separable, is sometimes one of difficulty, and no precise rule can be laid down to embrace every case. “Like most other questions of construction, it depends upon the intention of the parties, and this must be discovered in each case by considering the language employed and the subject-matter of the contract.” 2 Parsons on Contracts, 677.

Apart from all other evidence, it will be admitted in this case, that the promissory note pledged the personal responsibility of the appellee, and, in itself, constituted a distinct and independent cause of action. If so, can the receipt and power of attorney be construed as a waiver, by the appellants, of this personal responsibility, and an agreement to look only to the collections for the payment of the money advanced? We think not. The result of the planting enterprise had not been ascertained at the date of these transactions, and, as was justly remarked by counsel for the appellants, all parties doubtless expected to realize, from the appellee’s interest in the crop, a sum sufficient to re-pay the money advanced. But it must be borne in mind, that the note was payable twenty-two days after date, and it could hardly be expected that, within the time thus specified, they could enforce the payment of the bond by judgment and execution on the mortgage by a decree and sale. Nor is there anything in the correspondence between the parties, subsequent to the date of these transactions, from which it can even be inferred that the understanding was, that the appellants were to look exclusively to the collections. In their letter of January 11th, 1868, they explicitly demand the payment of this note, and it is nowhere claimed by the appellee in his reply, that the money was advanced on any such agreement. We think, therefore, it is cleai’, not only from the face of the papers, but from the other testimony in the cause, that the lien on the collections arising from the bond, mortgage and contract, was given, and received by the appellants as collateral security for the money advanced. If so, in the absence of an agreement to the contrary, the possession of tlie additional or collateral security could not impair or affect the appellant’s right to pursue and enforce the payment of the promissory note so long as it did not appear in evidence that they had been paid from the specific lien, and if paid, the burthen of proof was upon the appellee.

(Decided 9th March, 1870.)

The plaintiffs’ right to recover in no manner depended upon the question of diligence exercised by them as attorneys in the collection of the several sums claimed to be due on the bond, mortgage and contract. If they failed to discharge their duty, and the appellee sustained any damage therefrom, his remedy would be by an action at law.

The prayers, however, of the appellants were properly refused, because they submitted to the jury the legal effect and operation of the note, receipt and power of attorney. This was a question of law, to be determined by the Court. They should have left to the finding of the jury the execution of these papers, — the legal liability of the appellee necessarily resulted therefrom. Moreover, there was no proof offered in regard to the rate of interest in South Carolina.

It must follow, from what we have said, that the Court erred in instructing the jury that the note, receipt and power of attorney, constituted an entire contract, and that the plaintiff was not entitled to recover, because it did not appear from the evidence that any effort was made to realize the money thereon. The judgment must be reversed and a new trial awarded.

Judgment reversed and new trial awarded.