Howard v. Holbrook , 9 Bosw. 237 ( 1862 )

Robertson, J.,

dissenting. The only circumstance on the trial which makes me doubt the right of the plaintiffs to recover is the proof of the identity of the person of whom the demand was made ; if he was the defendants’ intestate, the plaintiff had a right to recover.

Numerous decisions, in this state, culminating in Church agt. Brown, (21 N. Y. R., pp. 316, 321-332;) and Miller agt. Cook, (22 How. Pr. R., 66,) settle “ for value received" to be the expression of a sufficient consideration within the meaning of the statute of frauds. The agreement gave the plaintiffs the option to sue on the contract of indemnity or guaranty of value for the difference between the named and the market price, or for a price fixed on a tender of the bond ; and in either case I do not think the statute could apply. The tender is alleged to have been made by a witness who did not know the deceased, in the office of the latter, to a person who claimed to be him. The same witness alone testified to its being his office. It is plain he could not know it to be his, by having seen him go in or transact business there, because he did not know him; and he could only rely for the fact upon hearsay information, which would not be evidence. If it was not his office, proved to be so by those who knew the fact by seeing him go in there or transact business there, the other fact, that the person seen claimed to be the intestate, would be of no avail; because, although proof of the same name be prima facie evidence of identity, yet the bearing of the same name must be a matter of repute, and is not established merely by a, person’s once claiming it, otherwise great frauds might be perpetrated. The original party in this case is dead,, and cannot be produced for identification, or otherwise ; no aid can be derived from him in proving an alibi at the time of the tender; and any one who personated him at his reputed office might make him liable.

In Butler’s Nisi Prius (1716) it is, laid down that a man’s calling himself by a particular .name did not make him so, and in Jones agt. Jones, (9 Mees. & Wels. Rep., 75.) it was held that all presumption of identity was repelled by proof that several persons of the same name lived, in the same place. The necessity of some other proof besides identity of name, of identity of person, when such person resides in a large city, is recognized in Hubbard on Succession, (pp. 103, 464, 465,) particularly in regard to a registry of names in baptism and marriage. (But agt. Barlow, 1 Doug. R., 70; Bruen agt. Mason, 1 Car. & P. Rep., 202; and Wedgwood’s case, 8 Greenl. R., 75.) All the Barons in the court of exchequer, in England, held that, although proof of the handwriting, of a subscribing witness was evidence of an execution of an instrument by some one of the name mentioned in it, further evidence was necessary of the identity of such person with the defendant. (Whitelock agt. Musgrove, 1 Cr. & Mees. R., 511.)

The same, views had been previously expressed by one of the same judges (Bayley) in Nelson agt. Whittal, (1 Barn. & Ald. R., 21.) In a subsequent case in the Queen’s Bench a different rule was adopted, Lord Denman sustaining Ab? bot, Justice, who had dissented in Nelson agt. Whittal; his argument was. that, although it was a hardship on the defendant to prove a negative, it would be a greater hardship on the plaintiff, and that the danger encountered, in suing a wrong person, and the, facility of disproving the presumption by bringing the party into court, was sufficient to overthrow the argument ab inconveniente. It is evidently no answer in this case, as there is only the hazard of costs in serving a summons on the wrong person if alive, and the real defendant is dead.

In the case of Hunt agt. Mabie, (3 Seld. R.,) presentation of a note to a person at a place which was written after the makers on such note, and where there was a sign of a tailor, the word “ Tailor” being also written after such note, was held sufficient. This was undoubtedly correct on the ground on which it was put, to wit, that the direction on the note was an admission by the person who made it, that such was the proper place to look for him; it does not establish that a person claiming to be a particular individual in his reputed office can do acts to bind him.

There certainly can be no difficulty in proving by other witnesses who knew the deceased and his place of business, that the place in question was his office, or the person of whom the demand was made was the deceased; and the case should go back for a new trial on that point, as the laxity of court on the question of identity may lead to dangerous consequences, particularly when a party is dead.

The judgment should be reversed and a new trial ordered, with costs to abide the event.