Penniman v. Winner , 54 Md. 127 ( 1880 )

Robinson, J.,

delivered the opinion of the Court.

The appellee, Winner, sold to the Rockland and Venango Coal Oil Company, an oil well and oil lands adjacent thereto for twenty thousand dollars, the purchase money to be paid as follows :—ten thousand dollars cash, note at sixty days for five thousand, and five thousand dollars in the stock of the company.

In pursuance of these terms, the sale was duly consummated, and the property was conveyed to the company.

The note for five thousand dollars was subsequently délivered to the defendant for collection, and this suit is brought against him for its conversion.

At the trial the defendant offered to prove as one of the conditions of the sale and purchase, an agreement on the part of the plaintiff to contribute toward the payment of the purchase money, in proportion to his stock in the company, and that the contribution should be retained out of the amount due on the note. And also to prove that the note was left with the defendant for the purpose, and with the understanding that when the amount of such contribution should be so ascertained, it was to be allowed as a credit on the note.

It was not competent of course for the defendant to prove an oral agreement contradictory of, or inconsistent with, the written terms of sale; but it was argued that such evidence was .admissible to prove a collateral agree-, ment. A party, it is true, may prove a collateral agreement, provided such agreement be not inconsistent with the written contract, and such aré the cases of Basshor, &c. vs. Forbes, 36 Md., 154, and Fusting’s Ex’rs vs. Sullivan, 41 Md., 162, and Erskine vs. Adlane, L. R., 8 Ch., 766. But in this case the property was sold for twenty thousand dollars, and the contract of sale provided how and in what manner the purchase money was to be paid. The note for the conversion of which this suit was brought, is for the payment of five thousand dollars, and it is plain therefore, that the evidence offered by the defendant is not only inconsistent with the written terms of sale, but is also inconsistent with the note itself. It sets up a contract altogether different from the written contract of the parties, and the evidence was therefore clearly inadmissible.

The second exception brings up for review the rulings of the Court, upon the several instructions offered by the plaintiff and the defendant.

The appellant rested his defence mainly on two grounds:—1st. The fraudulent representations of the appellee in regard to the oil-producing capacity of the well, and 2nd, the failure of ■ consideration.

In regard to the first, the Court instructed the jury, that if the plaintiff falsely and fraudulently represented the. oil-producing capacity of the well to he greater than it was, for the purpose of inducing the company to purchase the same, and the company made the purchase upon the faith of such representations, and had not the means at hand of ascertaining whether they were true or false, and upon discovering that such representations were false, offered to re-convey the property to the plaintiff, then the verdict must he for the defendant. No objection is made to this instruction, but the defendant contends that the Court erred in refusing his second prayer. This prayer assumes that if the company was desirous to add to its property an oil well already actively producing oil, with a view of furnishing oil from such well to the market to improve the value of its stock, while engaged in exploring for oil on its property, and that the plaintiff was aware of this purpose, and represented the well in question as an active producing oil well, yielding from six to ten barrels of oil daily, and as such suitable for the purposes of the company; and the company relying upon such representations, purchased the well from the plaintiff, and that the note of $5000 is part of the consideration of said purchase ; and if they shall further find that the well was in fact wholly unfit for the purposes for which the company purchased it, and for which the plaintiff sold the same, and that the company upon so discovering it to he so wholly unfit, offered to re-convey said property and to rescind the contract, and demanded a return of the cash part of the purchase money, and refused to pay said note of $5000, then the plaintiff is not entitled to recover.

. This instruction which seems to us to embrace certain elements of both fraud and warranty, is supported solely on the ground that the facts therein set forth, if found hy the jury, show an entire failure of consideration of the note now in controversy. As between the parties to a promissory note, the failure of consideration may no doubt be relied on as a defence. But there is in this respect at least a wide difference between a failure of consideration, and a failure of benefit resulting from it. Where one sells and another buys an oil well, and the purchaser gets a well of water only, there is in such a case a failure of consideration. If however he gets an oil well, the thing he bought, the fact that it does not yield oil enough to make it profitable to work it, does not constitute a failure of consideration upon which he may rely as a defence in a suit upon a note given on account of the purchase money. In such a case he must rely upon his warranty ox fraud.

The text in Benjamin on Sales, 309, that there is no such thing'as a failure of consideration where the buyer has got that which he bargained for, although the subject-matter of the sale may turn out to be a thing of no value, is sustained hy decided cases. Hall vs. Conder, 26 L. J. C. P., 138; Young vs. Cole, 3 Bing. N. C., 724; Gompertz vs. Bartlett, 23 Law J. Q. B., 65; 1 E. & B., 849; 8 C. B., 373; 4 Bing., 373.

The thing sold here was an oil well, and it is admitted the company got an oil well, but the objection is that it wholly failed to answer the purposes for which it was bought. It did not yield enough to justify working it. This fact, however, does not constitute a failure of consideration as relied on by the defendant, and there was no error therefore in refusing the second prayer.

It was further urged in argument, that the instructions granted by the Court are erroneous, because they are based upon the assumption that the note or instrument of writing for the payment of five thousand dollars, is a promissory note, and it is contended that it is not a promissory note, not being for the payment of a certain and definite sum.

The company in the body of the note agrees to pay the plaintiff five thousand dollars, less his proportion for contribution to the working capital of the company, the said contribution to be in proportion to the shares of stock held by him.

It is an essential element of a promissory note, that it should be for-the payment of a certain sum. The object of such a note is to represent to some extent at least money itself, and there must be no uncertainty or chance of mistahe as to the amount of money of which it thus takes the place and performs the office.

The sum must be stated definitely, and it has been said that the maxim “Id cerium est quod cerium redAipotest,” cannot be invoked to supply the want of an express certainty on this point. Where, however, the note has not been negotiated, and the suit is between the original parties, the question is more one of form than of substance, for although it could not be declared on as a promissory note, still it would be evidence of an agreement to pay money, and the plaintiff might frame his declaration accordingly. In such case by proving the consideration, he might obtain all the advantages which would belong to the instrument as a promissory note.

This, however, is not a suit upon the note or instrument of writing as a note, but an action of trover against a third party for its conversion, and conceding for the purposes of this case that it is not, strictly speaking, a promissory note, yet it is an agreement' to pay money, and as such a valuable security, for the conversion of which an action of trover would lie. Being a valuable security belonging to the plaintiff its conversion by the defendant is the gist of the action, and whether it be a promissory note or an agreement to pay money, or any other valuable security, the measure of damages would be the same, namely, the plaintiff’s interest in the thing converted.

The fact, therefore, that the several instructions granted by the Court assume that the paper in question is a promissory note, constitutes no ground for reversing the judgment, because in any aspect of the case, the measure of damages to which the plaintiff was entitled is correctly stated by the Court.

(Decided 29th June, 1880.)

The motion in arrest of judgment was also properly overruled.

The declaration contains three counts :

1st. For the conversion or trover.

2nd. For money received.

3rd. For money found due on amounts stated.

In support of the motion, it was argued, that the declaration was had, because it contains a count in trover and one in assumpsit.

Whether counts in trover and assumpsit can he joined is a question not necessary to he decided here, because it is obvious that there is hut one good count in this declaration, and that is the one for trover.

The second count is defective, because the words for “ money payable ” are omitted. Rider vs. Merryman, 34 Md., 100. Art. 15, sec. 22, of the Code provides, that the words “ money payable,” &c., shall precede the money counts.

The third count is defective, because there is no such thing as a count for “ money found to he due on amounts stated,” nor are we at liberty in the face of the record, and the objection of the appellee, to treat it as a count “for money found to he due on accounts stated.”

Finding no error in the rulings below, the judgment will he affirmed.

Judgment affirmed.