Straus, Hartman, Hofflin & Co. v. Beardsley , 79 N.C. 59 ( 1878 )

Smith, C. J.

This action was commenced on the 31st day. of December, 1874, before a Justice of the Peace, and’ upon the following contract:—

“Gxeenville, N. 0., August 1,1860.

We, the undersigned, acknowledge ourselves indebted to the firto of Straus, Hartman, Hofflin & Go. in the suin of one.hundred dollars each, for payment of which well and truly to be made, we bind ourselves, our "executors, administrators and heirs. The condition of the above obligation is such that if the said ‘ firm of Straus, Hartman, Hofflin & Co. shall furnish James L. Paul as agent for them, with goods for sale on commission or otherwise, and the said Janjes 'L.’Paul shall thereafter fully and fairly settle and account for the said goods, then the above obligation to be void’; otherwise to be and remain in full force and effect.”

The contract -is' executed' by W. B. Eborn, the defendant’s intestate, and fifteen other persons.

The record of proceedings isi very imperfect, but its omissions aré supplied by the statements contained in the case sent up with it. - The following defences are made to the action.- (1.)-A general denial of liability on the contract. (2.) The want of notice to the intestate of the' delivery of the goods to Raul; and of a-demand of-payment; (3.) The bar of the statute of limitations, The action was brought against W. K. Delaney, the administrator of W. B. Eborn, who died pending the suit,- and the present defendant as administrator de bonis non was substituted in his place.

There is but one distinct exception of the plaintiffs taken at the trial, and this was to the rejection of the deposition of the plaintiff, Stern Hartman, offered in evidence. The deposition had been taken in a former action instituted in the Superior Court by the plaintiffs against the first administrator of the intestate, Eborn and others, who signed the contract, and was dismissed for want of jurisdiction. The evidence contained in the deposition is not set out, nor the purpose for which it was offered stated, and. we áre consequently unable to see that it was either relevant or competent, or that any injury resulted from its exclusion. It was the duty of the plaintiffs, as has repeatedly been decided, to show that the rejected evidence was competent and proper. Sutliff v. Lunsford, 8 Ire. 318; Whitesides v. Twitty, 8 Ire. 431. The exception must be overruled.

The evidence given by the plaintiffs is set out in the case, and without finding any fact, the Judge who, under the agreement of parties was to find the facts, being of opinion that the plaintiffs could not recover, dismissed their action. But we are not informed upon what grounds the action is dismissed, nor which of-the defendants’objections are deemed valid and fatal to the plaintiffs’ recovery. We must therefore in reviewing the correctness of the ruling of the Court below, assume as proved, not only such facts as are directly testified to, but such as may be reasonably inferred from the evidence. We will therefore consider the defences set up, and their sufficiency to warrant the judgment of the Court—

1. The statute of limitation is insisted on as a bar to the action: This defence is not tenable. The goods were delivered to Paul in August, 1860, and afterwards. The first action, dismissed for want of jurisdiction, was commenced^ March 20th, 1872, and ended at March Term, 1874, of the Court. The present suit was instituted on December 31str 1874. Excluding the interval during which the statute of limitations was suspended, three years had not elapsed from, the delivery of the goods when suit was instituted, and the-present action is brought within a year after the termination of the other. The plaintiffs are thus relieved from the-effects of the lapse of time, and their claim protected. The; judgment dismissing the action is in substance a non-suit, and must be attended with the same legal consequences and a non-suit though not within the very words of the act,, has been held by express adjudication, and long and uniform practice, to be within its scope and meaning. Rev-Code, ch. 65, § 8. Skillington v. Allison, 2 Hawks 347; Morrison v. Conelly, 2 Dev. 233.

2. The contract is alleged to be one of guaranty, and to require notice of delivery of goods under it, in order to create a liability therefor: It is true in ordinary cases of guaranty, such as letters of credit, the guarantor can not be made-responsible for goods sold on the faith of it, unless notice'is. given him in a reasonable time, and be thus afforded an opportunity of securing from the party to whom they are delivered an indemnity against loss to himself. But if the undertaking be to guaranty the contract which may be made, the obligation is not collateral and contingent, but absolute and unconditional, and no notice is necessary Williams v. Collins, 2 Car. L. R. 382. Such in our opinion, is the contract of the intestate. . It is in the form of a penal bond, and lacks only one element, a seal, to make it such-The undertaking is to pay a certain sum, and by the terms of the condition it is discharged only when goods have* been delivered under its provisions, by actual payment of the: purchase price. If the goods are delivered, the contract is to pay for them, and a compliance with this condition is the only means of discharging the obligation. It thus became the duty of the intestate and his associates to ascertain for themselves if the plaintiffs furnished goods to Paul, and that they were paid for, and no notice or demand was necessary to charge them with the debt.

3. The contract as construed by the defendant applies only to a delivery of goods to Paul, as agent of the plaintiffs, for sale on commission or other compensation, and is confined to a single transaction; and it is insisted that the dealings between these parties, as disclosed by the evidence and account exhibited, are those of vendor and vendee, and are outside the protection of the contract.

If we admit this to be the true and proper meaning of the undertaking, and we are inclined to do so, we are not prepared to say it does not embrace the transactions now under investigation. The evidence shows a delivery of goods shortly after the contract was entered into, at different times andatspeeified prices, and the witness speaks of it as a sale. But the entry on the plaintiffs’ books specifying the articles delivered, their dates and prices, would be similar in all probability, if they were transmitted to an agent for disposal, and is but a detailed memorial of the transaction. The terms and conditions on which the deliveries were made are not shown, nor the true character of the dealings revealed in the evidence. In the absence therefore of any findings of fact by the Judge, we cannot declare these dealings not embraced in the intestate’s obligation. The facts should have been reported, as found by the Judge, and not meagre evidence set out instead, in order that we may properly apply the principles of law which control and govern them.

In our opinion the obligation is not restricted to one act of delivery, but was intended to secure the plaintiffs from loss in their successive dealings with Paul, and provide for them a continuing indemnity. The cause must be remanded in order that the true character of the transaction, and the terms and conditions on which the plaintiffs' delivered the goods may be ascertained, and the liability if any incurred by the intestate in regard to them, determined.

The judgment below was erroneous and is reversed and the cause remanded. Let this be certified.