Palmer v. . Holland , 51 N.Y. 416 ( 1873 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] When the plaintiff delivered this note to the defendant's agent at Brockport he believed the defendant's express line extended to San Francisco, and was not informed to the contrary; and he accompanied its delivery with a request that the note be taken (not sent) to San Francisco and presented to Shaw, payment demanded, and, if not paid, to have suit brought at once; and in pursuance of this request the defendant's agent at Brockport, to whom the note was delivered, indorsed upon the envelope in which the note was carried the following direction, to be observed in regard to it: "If not paid on presentation, have it sued and collected as soon as possible." This clearly was not a mere contract to forward, but to carry the note to San Francisco and present it for payment, and, if not paid, to have it sued at once. If, after this note reached San Francisco and payment was demanded upon it and declined, it had, in accordance with the directions given, been sued at once, this controversy would have been saved. No error was committed in the ruling on the trial, that Wells, Fargo Co., in what they did, acted as the agent of the defendant. I do not think the fault was imputable to the attorneys employed by Wells, Fargo Co. But if otherwise, the defendants were responsible for their delinquency. (Ayrault v.The Pacific Bank, 47 N.Y., 570.) The fact that the plaintiff by his attorney answered the letter addressed to him by Wells, Fargo Co., by no means sanctioned the delay in prosecuting the note. No delay was asked for and none was approved; and hence the judge was right in holding that the delay was not excused, and that the defendant was liable in some amount of damages, to be settled by the jury. When, after the plaintiff had proved the contract and the defendant's neglect in performing it, and that the result was a judgment against the plaintiff for costs, and rested, the defendant moved that he be nonsuited upon these grounds: 1st. That the plaintiff had sustained no damage whatever; 2d. That no negligence had been made out against the defendant; and 3d. That the California statute had run on the note when it was delivered to the defendant. And when each of these propositions was properly overruled, the first two for reasons already stated, and the third that it was not true, the defendants then, without further question, proceeded, for the purpose of avoiding their liability to pay damages, to prove that if the note had been seasonably sued in California and judgment recovered, that by reason of the insolvency or embarrassed circumstances of Shaw nothing could have been collected upon it; and the trial proceeded throughout without a suggestion that any other reason for the reduction of damages existed, and until the evidence had closed, and no question having yet been raised or allusion in any way made to what the appellant now substantially claims, viz., that the judgment in California was not upon the merits of the plaintiff's demand, but a judgment refusing, under a local law of that State, to hear and determine its merits upon the ground that the contract sued upon, not having been made in California, was not seasonably presented there, and hence that an action might have been brought upon it in this State or Illinois, after Shaw's return from California in 1855, the judge proceeded to review and decide the several questions presented by the evidence in the case, five in all, and in the course of the review and decision he stated that the defendant, instead of causing a suit to be immediately commenced upon the demand when payment was refused, without valid excuse delayed suing it until the statute had run upon it, and that the plaintiff thereby lost it; and now the appellant insists that the judge, in this statement that the plaintiff thereby lost it, intended to and did decide that the judgment in California was a bar to an action brought upon the same demand elsewhere than in that State. The answer is twofold: 1st. That the judge, in what he said, was alluding to the proceedings in California, and as to what had been lost in that State by the omission on the part of the defendants to do their duty; and 2d. That the case is without evidence to show that up to this time the question as to the right of the plaintiff to sue elsewhere than in California, after the court in that State had decided that he take nothing by his action, had occurred to the defendant's counsel, who it is presumed before the trial commenced had considered each question that would arise upon the merits, and was prepared to present each one distinctly to the consideration of the judge, whose duty it was to decide such questions as were presented; and when after the counsel for the respective parties had addressed the jury, without, so far as appears by the case, alluding to this proposition, the judge in his charge instructed them that it belonged to the defendant to prove that Shaw was irresponsible, and that the defendant must satisfy them beyond a reasonable doubt that nothing could have been collected of him by suit in California, and if upon that point the evidence simply left their minds in doubt, the plaintiff was entitled to their verdict. The exception taken represented the judge as charging, "that if there was no reasonable doubt as to whether Shaw was solvent or not, the plaintiff was entitled to recover the whole amount of the note and interest." The judge certainly did not say so. All he said was, in substance, that if the testimony simply left their minds in doubt the plaintiff was entitled to their verdict; that the whole amount could have been collected of Shaw if judgment had been recovered against him in that State. No question had been made on the trial, or at the close of the evidence, as to the burden of proof. When the plaintiff rested the defendants erroneously insisted that no damages whatever were recoverable; and when they were overruled no measure or rule of damages was suggested by the defendants' counsel; and when the amount of the note, including the interest upon it, was conceded the defendants, as if conceding that if they were liable in any amount of damages they were liable for the full sum of the note and interest, asserted, in avoidance of that liability, and entered upon the proof to establish the fact that, even though a judgment had been recovered in California, nothing could have been collected upon it. They took this position, and the cause was tried and submitted to the jury upon this theory; and hence, if for no other reason, the defendants cannot complain of the judge's charge that the burden of proving that a judgment against Shaw upon the demand could not have been collected of him in California rested upon defendants.

The request to charge embraced in a single request five propositions: First, that the action in California was prosecuted solely at the expense of Wells, Fargo Co.; second, that Shaw resided here only for a limited period; third, that his prior and subsequent residence was in Illinois, where it now is; fourth, that the plaintiff's right of action was the same as before the action in California; and, fifth, that the plaintiff must show, affirmatively, that he has sustained damages. The first and second of these propositions were each immaterial. The third was an unquestioned fact. The fourth, I infer from the argument submitted to us, was designed to present the question whether the plaintiff's right of action, elsewhere than in California, was the same that it was before his defeat in his action in that State; but the proposition, as made, amounted to a request to charge that his right of action everywhere, including California, was the same that it was before the court in that State had decided that his right to maintain an action there was barred by the statute of limitations. The fifth proposition is disposed of by what has been said as to the burden of proof.

Unless the several propositions contained in this single request were material to the issue, and true in fact and in law, the judge did not err in refusing to comply with it. That they were not, is obvious.

The verdict appealed from should be affirmed.

All concur.

Judgment affirmed.