Duran v. Ayer , 1877 Me. LEXIS 23 ( 1877 )

Appleton, C. J.

The plaintiff and defendant were formerly partners. On the 11th of December, 1874, the plaintiff sold the defendant “all his interest in the property and rights and credits of the firm of J. R. Duran & Co.” In consideration of this sale, the defendant, by his contract of that date, promised the plaintiff that he would “assume and pay all the debts and liabilities of the said firm of J. R. Duran & Co. and hold said Duran harmless from the same and from all costs and damage on account of the same.” There is a further promise to pay the sum of $1500 in five equal installments in regard to which there is no dispute, the amount being agreed upon.

This suit is upon the agreement of December 11, 1874. The plaintiff introduces two notes signed by himself, payable to his own order and indorsed by him and by J. E. Duran & Co. These notes were in tbe hands of G. R. Davis, to whom the plaintiff mortgaged a house owned by himself as security.

The main issue was whether these notes were “debts and liabilities” of the plaintiff or of the firm of J. R. Duran & Co.

Upon this question the presiding justice gave the following instructions : “Was this a debt of the firm, or as between the firm and Duran was it a personal, private 'debt of Duran, which it belonged to him to pay. Upon this issue the burden of proof is upon the plaintiff to satisfy you by the balance of the testimony, by the weight of evidence, that at the time the amount of indebtedness represented by these two notes was a firm debt, a firm liability, one that as between the plaintiff Duran and the firm, it belonged to the firm to pay.”

To this the defendant cannot reasonably object, for if it was a “firm debt or liability” he was bound by his agreement to pay it.

The two notes in controversy not having been paid by the defendant as the jury must have found it was his duty to do, the plaintiff in consequence thereof has lost his house, which he mortgaged to secure tlieir payment. He has paid this firm debt to tbe extent of the value of bis interest in the bouse. This value has been very variously estimated. But the value, whatever it may be, is the measure of damage sustained by the plaintiff.

The presiding justice first instructed the jury that the measure of damage was the amount of the notes. If the notes had been fully paid by the house there could have been no objection to this instruction. But as the value of the house was in dispute, the judge subsequently modified his instruction thus: “Instead of the instruction I gave you as to the amount the plaintiff may recover upon the two notes, and modifying my ruling to this extent, I say to you that for the non-payment by tbe defendant of the debts evidenced by the two notes in the case the plaintiff, if entitled to recover, is entitled to recover the amount of damages which he is shown by the testimony to have sustained thereby, not to exceed the amount of the notes and interest.”

The property of the plaintiff paid these notes to tbe extent of the value of his house. It might have been of much greater value than the notes. The plaintiff could not recover for such excess. He was limited to the damage “sustained therebythat is, by the loss of the house.. This is perfectly clear and intelligible. If the defendant desired anything more explicit, he should have asked for it. ¥e think the jury could not have misunderstood this ruling. It was in no respect adverse to the defendant.

The notes were on time and at the rate of twelve per cent. It has been held in such case that after maturity of the note, the plaintiff is entitled to interest by operation of law, and not by any provision of the contract. Brewster v. Wakefield, 22 How. 118. Burnhisel v. Firman, 22 Wall. 170.

If there be an excess of interest in" the verdict, as claimed by the defendant, the plaintiff upon entering a remittitur will be entitled to judgment.

Walton, Barrows, Virgin, Peters and Libbey, JJ., concurred.