Smith v. . Morgan , 14 N.C. 511 ( 1832 )

"I, James Morgan, assign the note and judgment against Henry and John Wilkes, of the town and county of Halifax, which was made payable to me for the sum of $3,350, dated 15 February, 1823, to Henry Smith, and I, the said James Morgan, do guarantee unto the said Smith that the aforesaid note and judgment is good. 4 March, 1823."

Plea — non assumpsit. On the trial, before Daniel, J., at NORTHAMPTON, on the last spring circuit, the case was as follows: At the time of making the guaranty, Henry Wilkes had confessed a (512) judgment to the defendant, but John Wilkes was not a party to it; John Wilkes was then perfectly solvent, and had a suit been brought against him then, or at any time before his death, in December, 1823, the debt mentioned in the guaranty would have been paid. Had an execution then issued to the counties of Bertie and Martin, against Henry Wilkes, it would have been satisfied, as he had property in those counties. Suit was not brought against John Wilkes until eleven months after the qualification of his administrator; it was brought in the name of the defendant, but whether it was prosecuted by him or the plaintiff did not appear. Within ten days after the date of the guaranty the attorney who obtained the judgment against Henry Wilkes asked the plaintiff if he wished process to be issued against John Wilkes, but was informed that his, the plaintiff's own attorney, would attend to the business for him.

The agent of the plaintiff deposed that, learning there was no probability of having an execution in the hands of the sheriff of Halifax satisfied out of the property of Henry Wilkes, he had given the defendant notice of it, and that the plaintiff looked to him upon the guaranty; that upon receiving this notice, the defendant promised to attend to the collection of the debt, and threatened to make the money out of the sheriff, who he said had subjected himself. Whether this notice and conversation took place in November, 1823, or February, 1824, did not distinctly appear.

For the plaintiff it was contended that the defendant, in his guaranty, had stipulated that there was a judgment against Henry and John Wilkes, and that as it turned out that there was a judgment against Henry only, this was not a compliance with its terms. But the judge ruled otherwise. The counsel for the plaintiff, in his address to the jury, contended that if the conversation deposed to by the plaintiff's agent took place in November, 1823, before the plaintiff had been guilty of neglect in collecting the debt, it amounted, in law, to an (513) agreement on the part of the defendant to attend to the collection of the debt himself, and discharged the plaintiff from all obligation to take any further steps for that purpose; that if it took place in February, 1824, the counsel admitted the plaintiff then to have been in default, but contended that if the defendant, at that time, was fully acquainted with all the facts touching the state of the debt, and the steps taken for its collection, his undertaking amounted to a waiver of any advantage by reason of the laches of the plaintiff; and for this, the counsel referred the jury to his Honor.

The judge charged the jury that if the defendant had promised to pay the debt with a full knowledge of the circumstances, he was bound by that promise, and could not object to the neglect of the plaintiff; but if he only agreed to assist the plaintiff in the collection of the debt, the latter was not thereby discharged from his obligation to use reasonable diligence in prosecuting the claim against the principal debtors, and that if he failed in using such diligence, he could not recover in this action.

A verdict was returned for the defendant, and the plaintiff appealed. The matter assigned as the first breach, if there be anything in it, goes to vacate and annual the contract, and is not within the stipulation of the guaranty that the debt was good. But the words "note and judgment" are a mere description of the thing sold, and no part of the guaranty, and are not false in fact, for there could not be a note and judgment against both Henry and John Wilkes for the same debt at the same time, and especially if the note on which the judgment is obtained precede the judgment, for in such case the note is merged in the judgment. The description imports just such a thing as there is, viz., in a joint note taken against both, reduced to a judgment against one. But if it was a false description, and thereby the contract was vacated, and even if a count annulling a contract could be joined with one enforcing the same contract, yet the plaintiff, by (514) receiving the thing with a full knowledge of what it was, and retaining it so long, admits that it was in substance the thing purchased, and waives his right of vacating the agreement.

As little ground is there to support the objection taken to the charge of the judge below, although it is admitted that the charge did not meet the view of the plaintiff's counsel, and although, if the evidence made the point, either by positive proof or by an inference which the jury could draw, the judge should have declared the law upon it. I allude to the reference made by the counsel of the plaintiff, in his address to the jury, to the judge, as a matter of law, for him to decide, that if the conversation (with the agent) took place before Smith had been guilty of neglect, it amounted in law to an agreement on the part of Morgan to attend to the collection of the debt out of Wilkes, and discharged Smith from taking further steps in relation thereto. I do not know that I catch the counsel's idea, but take it either way, it cannot benefit the plaintiff. In the first place, there is nothing like the sole undertaking of its collection by Morgan. This engagement amounted to nothing more than that he would give his aid, and, by consequence, did not discharge Smith. Now, if the collection of the debt was of such a nature that two could not act in it, that the aid of one necessarily prevented the other from acting at all, if there be such a state of things, then, if Morgan undertook to act, or even to aid, and if this necessarily prevented Smith from acting, surely the agreement by Morgan to attend to, to aid, or assist in the collection of the debt necessarily discharged Smith — discharged him, I say, if necessarily the aid in attending to the debt prevented, that is, rendered it impossible for Smith to act in the matter. But I cannot see how it rendered it impracticable for Smith to act also. As a question of law, I should therefore say that if, before Smith had been negligent, Morgan had promised to attend to the collection of the debt, that (515) Smith was not thereby discharged, unless Morgan, by words, discharged him; his agreement to attend to it did not have that operation, unless he had taken upon himself the exclusive collection of it. As to the express promise, the judge ruled that a promise of any kind, either expressed or implied, would bind Morgan, if made with a full knowledge that Smith had by his negligence discharged him. The charge was certainly as favorable to the plaintiff as the law warranted; nor do I perceive any impropriety in the judge's pointing out the difference between a promise to pay and a promise to assist in the collection of the debt. Taking the conversation to be either before Smith's neglect or after, then he can claim nothing from it, either in law or fact. If before, it did not amount to anything like a discharge to Smith from further diligence; if after, there was nothing in it like a promise; so far from it that if the jury had found for the plaintiff on that ground, the judge ought to have set aside the verdict as being against the evidence. The fact is, the sum is large, and the plaintiff when he brought this suit calculated on the chances. It is a most groundless claim.

PER CURIAM. Judgment affirmed.

Cited: Ashford v. Robinson, 30 N.C. 117.