Davis v. Gowen , 17 Me. 387 ( 1840 )

The opinion of the Court, was drawn up by

Weston C. J.

The attorney for the plaintiff is not liable to •the defendant for his costs, unless he indorses the writ. It is no part of his duty, in virtue of his retainer, to do this. It is in practice often done by him, but the obligation it imposes, depends upon his indorsement, to which a certain legal effect is attached, and not upon the relation in which ho stands, as the attorney of the plaintiff. The partner of Mr. Wilson, the witness objected to, indorsed in this case the plaintiff’s writ. lie might have done it in the name of the firm. If he had, they would doubtless have been bound, being done in the prosecution of their professional business. But he did in fact indorse it in his own name. He had a right to to do so. The indorsement was not objectionable. We do not perceive how it can render the firm liable to the defendant. He had no right to require their indorsement. Nor does it appear to us, that the actual indorser has a remedy over against them. It was a liability by him voluntarily assumed in his individual capacity, not a duly arising from his professional relation.

After their dissolution, the business was continued and to be settled by Mr. Prison. This did not subject him to any liability for costs, which the firm had not assumed. It does not appear iri the exceptions, that ho had undertaken to indemnify his former partner. As the case stands, no such interest is disclosed, as would render .the witness incompetent.

The liability of the defendant was originally conditional, depending upon legal demand and notice, which it was incumbent upon the plaintiff to prove. It is not pretended, that spch proof has been made. An express promise is relied upon, which it is insisted is a waiver of the condition, and binds the defendant absolutely. The authorities are clear, that to have this effect, it must have been made with a full knowledge of the facts, which would have entitled the defendant to have been discharged. And this must be made to appear affirmatively, from the proof adduced by the plaintiff.

The decisions in New-York, cited for the defendant, maintain this doctrine. In Trimble v. Thorne, 16 Johns. R. 152, it was held, that the promise itself is not evidence, that the indorser was apprized of the facts. In New-Hampshire, it has been decided, that a new promise by the indorser, to be binding, must have been made with a full knowledge, that there had been no legal demand and notice. Otis v. Hussey, 3 N. H. Rep. 346; Farrington v. Brown, 7 N. H. Rep. 271. In Martin v. Winslow, 2 Mason, 241, Story J. says, “ a promise to pay with a full knowledge of all the facts, is binding upon the indorser, although he might otherwise be discharged. But if he promise in ignorance of material facts, affecting his rights, it is not a waiver of those rights.”

In some of the cases cited for the defendant, the Court intimate an opinion, that the indorser ought to know that he is legally discharged. But in practice, no other proof has been required, but such as is calculated to afford reasonable satisfaction, that the indorser had a knowledge of the facts, which relieved him from legal liability. In Hopkins v. Liswell, 12 Mass. R. 52, the jury were instructed, that if the indorser, when he made the promise, knew that no demand had been made upon the maker, he was liable; and they were left to infer this knowledge, from the circumstances proved. These instructions were sustained by the Court.

In the case before us, the same instructions were given, with the addition, that from a knowledge of the facts, it was to be presumed that he knew that he was legally discharged. We are of opinion, that the law, as to the effect of a promise thus made, was properly laid down by the presiding Judge. It was the province of the jury to determine the facts, which is a matter not submitted to our revision.

But there does not appear to have been sufficient evidence, upon which to base the instruction. There is no affirmative proof, that the defendant knew of the laches of the holder. The promise itself does not establish that fact. And we are of opinion, that the jury should have been so instructed, upon the request of the counsel for the defendant.

Exceptions sustained.