Dull v. Bricker ( 1874 )

Mr. Justice Williams

delivered the opinion of the court, July 2d 1874.

The acceptance of an order for the payment of money imports an engagement on the part of the acceptor, to the payee or other legal holder, to pay it according to the tenor of the acceptance. It is in no sense a contract of suretyship or a promise to answer for the debt or default of another. The acceptor is a primary debtor, and the Statute of Frauds does not require the engagement to be in writing. The fact that the orders in question were verbally accepted, was, therefore, no valid objection to their admission in evidence. But were they admissible under the rules of court ? The plaintiffs did not exhibit them to the defendants, nor file with their declaration a written statement of the demand that they purposed to give in evidence, in pursuance of the defendants’ notices, as required by the rules. Why, then, should the orders have been admitted contrary to their express prohibition? If they were in the possession of the defendants, the plaintiffs were not bound to exhibit them, but they might have given such a description of them as would have enabled the defendants to identify them; and if they had done so, it would have been a substantial compliance with the rule. But the defendants’ possession of the orders was no justification or excuse for not filing with their declaration a written statement of the demand which they proposed to give in evidence. It would be a narrow construction of the rule to hold, as- the court below seems to have done, that the only purpose of the statement is to give notice of the plaintiff’s demand. This is undoubtedly one of its objects, but it is also intended to answer the purpose of a special count, and in this respect it must be regarded as a substantive and material part of the pleadings. Knowledge of the plaintiff’s demand, however, acquired by the defendants, is not an equivalent for the statement required by the rule. It was therefore error to admit the orders subject to the instruction that if the defendants did not know that they were demanded in this suit, there could be no recovery without notice under the rules of court. But if the defendants accepted the orders and knew that they were part of the plaintiff’s claim, then notice under the rule was not necessary, and there could be a recovery of the amount with reasonable interest. This ruling opened the door to an inquiry which the defendants were not bound to come prepared to meet, and submitted the case to the jury upon an issue not raised by the pleadings. It subjected both parties to the hazard of a finding which might have done great injustice; and, though no such result may have followed the ruling in this case, to sanction it would be establishing a mischievous precedent. Whether the orders were admissible or not, was a question for the court, and not a mixed question of law and fact for the determination of the jury under the instructions of the court. And it is clear that under the rules they should not have been admitted.

There was no error in refusing to charge as requested in the defendants’ points, and there is nothing in them that requires discussion.

Judgment reversed, and a venire facias de novo awarded.