Sharp v. Emmet , 1840 Pa. LEXIS 207 ( 1840 )

The opinion of the Court was delivered by

Sergeant, J.

Although the. decision in The Mechanics Bank v. Earp, (4 Rawle, 389,) is distinguishable from the present — that being the case of a mere agent for transmission, who endorsed the note, this, of a factor who remitted a bill to his principal in payment — yet the principles settled there, rule the present case. Formerly there seems to have been in the law merchant a severe and inflexible rule applied, that whenever an agent or factor endorsed a bill, he was liable on his endorsement, unless he took care at the time to limit his responsibility, by stating that it was “ sans recours,” or by procuration, or some similar mode. The authorities cited by Mr. Justice Rogers, in The Mechanics Bank v. Earp, and those referred' to in the argument here, sufficiently show this. But it is equally certain, that in more modern times the severity of this rule has been relaxed ; and it is now held, that between the agent, and the principal, the agent remitting a bill for payment with his endorsement, is not obliged, in order to exempt himself, to do so in express terms on the face of the endorsement. Such a restriction is objectionable in many instances, as calculated to throw a doubt over the responsibility of the prior parties, and to discredit them with those who may see the endorsement. The rule is, that the endorsement of the factor must be construed by the circumstances under which it is made; and unless there be something to show that in endorsing he intended to render himself personally liable, or that he was bound to do so, it ought not to be so intended. A factor remitting a bill to his principal in payment of goods sold on his account, and receiving no consideration for guaranteeing the bill, nor undertaking to do so, is not personally responsible merely on his endorsement.

But it is contended, that here the factor received five per cent, for commissions and guaranty, which included a guaranty of the remittance. This is a question of intention on the evidence. The general rule was very carefully considered by the Supreme Court of New York, in Leverick v. Meigs, (1 Cow. 664,) and it was decided, that under a contract by a factor to guaranty his sales, on a certain premium beyond the usual commission, the guaranty is only of the solvency of the purchaser, and not of the validity of the bill purchased in the usual course of business, and remitted on account of the principal.

Two bills of exception were taken to the evidence.

1. Mr. Spackman was called and examined by the defendant. On his cross-examination by the plaintiff, he stated that during the period in which he was selling certain bills drawn by Thompson, he heard that he was buying cotton in New York at higher prices than some others: but he never heard any suspicions or doubts of the goodness of his bills, before the news from Liverpool. His brother-in-law, Mr. Wilson, did not state any doubt on his mind about the goodness of the bills. The' plaintiff in reply called Joseph R. Evans, and offered to p2’ove by him a conversation which had occurred between him and Mr. Spackman, in which Spackman, before the news from Liverpool, had heard doubt and suspicion of the goodness of Thompson’s bills. The defendant objected. The plaintiff, referring to the above evidence, urged that the evidence was offered to contradict that part of Mr. Spackman’s .testimony. The Court admitted the evidence, and the defendant excepted.

The rule now relied on by the defendant is that which was established in the Queen's Case, that before giving such evidence to contradict a witness, he must be first asked particularly as to the conversation concerning which he is to be contradicted. That seems to have been considered in the Queen’s Case, as a rule of practice previously established in England. Plere, it is believed, it has not been: and though there are many cases in which it would be fair and proper, that a witness should have an opportunity of refreshing his memory, by being directed particularly to the subject, before he is contradicted, yet there are other cases in which it would be inconvenient to lay it down as an uniform rule of practice. The witness may have gone away, out of the jurisdiction of the Court: and in the case of a deposition, the course would be impracticable. In Massachusetts, the question was very carefully considered in their Supreme Court, and in a learned and able opinion, they dissented from the rule in tolo. We are disposed to leave it in Pennsylvania, as a matter for the discretion of the Courts on the trial, as we believe it has, generally speaking, hitherto been.

As to the second exception, we think the transactions of the defendant with Halliday, Jones & Brooks were not evidence in this pause, being res inter alios acta.

Judgment reversed, and venire facias de novo awarded.