Crawford v. Gaulden

By the Court. —

Jenkins, J., delivering the opinion.

This case comes up on exception to the judgment of the Court below, refusing to grant a new trial on various grounds stated in the motion.

Those grounds allege error: 1. In charges given and refused to the jury by the presiding Judge. 2. In the verdict, as contrary to the charge of the Court, to law, and to the evidence. 3. Exception is taken that the Court below did not grant a new trial on the ground of newly discovered evidence.

We deem it unnecessary to consider the errors alleged against the charge of the Court in detail. We dispose of them all under a rule established by numerous decisions of this Court, viz: that where the verdict is right in itself, and should have been rendered, had the entire charge been given, in accordance with the positions rightly assumed by the plaintiff in error, it- will' not be disturbed because of erroneous instructions. 6 Ga. R., 324; 10 Ga. R., 429; 14 Ga. R., 55; 15 Ga. R., 155; 17 Ga. R., 267, 435; 22 Ga. R., 237. The application of this rule will apj:)ear when we consider the exceptions taken to the verdict.

Our enquiry, then, is, was this verdict right under the evidence and the law controlling the case ? To arrive at a proper solution of this question, regard must he had to the allegations in the declaration constituting the gravamen of the action against the defendant. , Of these there are two, viz: After reciting that the plaintiff had recovered a judgment against one D. Harrell and bthers, as principals, and one J. Harrell, as security on the appeal, the defendant being the plaintiff’s attorney of record in said judgment, and charged with its collection, the allegation is, that the said D. Harrell, one of the principal debtors, desired indulgence, and the plaintiff proposed terms upon which it would be granted, among which was that the security should be satisfactory to Gaulden, (the said attorney and defendant in the case now before us,) that said Gaulden, as such attorney, had granted indulgence on said judgment for one year, without the knowledge or approbation of J. Harrell, the security on appeal, and without having taken other security, and by his gross negligence and unskillfulness in his management of the case had discharged said security in law, and that the principal defendants were wholly insolvent.

Again, it is alleged that during the term of indulgence granted, the defendant, Gaulden had caused junior judgments against the said D. Harrell, (the principal debtor,) which were also controlled by the said Gaulden, as attorney of record, to be levied upon the property of the said D. Harrell, and the money made, under said levies, to be paid in satisfaction of said junior judgments to the exclusion of plaintiff’s judgment, which, in law, was entitled to the preference by reason of its seniority. And finally, that plaintiff was ignorant of these several delinquencies until April, 1853, less than one year antecedent to the commencement of this action. Such is the plaintiff’s case.

The evidence in support of the first allegation leaves us in doubt as to the instructions under which the defendant acted in granting indulgence. We might reasonably expect, in such a case, explicit instructions by personal communication from the client to his attorney. The witness, D. Harrell, does not know certainly, but believes Gaulden acted under a letter of instructions received from his client. No such letter, however, has been introduced by either party. D. Harrell testifies that he exhibited to Gaulden a letter from his client (Crawford) agreeing to indulge him upon certain conditions, and that letter is in evidence. In it, after stipulating for a payment of sixteen per cent, of the debt, Crawford continues: “ Let the judgment remain open, and your security be satisfactory to Gaulden, and I am willing, and do promise, not to urge, or cause to be urged, before the 1st of October, 1843, etc.”

Here there is no direct stipulation for additional security' for the debt. There was already security, and if that were ample, (as indeed the evidence establishes satisfactorily,) we think this stipulation, in the letter of the plaintiff did not make it incumbent upon the defendant to exact additional security. But it is said the very indulgence granted to the principal debtor discharged his surety, and that this rendered it obligatory on the attorney (defendant) to take new security.

It does not appear to us that the legal effect of this indulgence was to discharge the surety. We do not overlook the ■principle settled by this Court, that a judgment does not extinguish the relation of principal and surety previously existing between the defendants, nor modify the duties which the creditor owes to the latter.

2. But we hold that where there has been no levy made upon the property of the principal, and no notice given by the surety to the plaintiff to proceed against his property, the rules of law regarding forbearance are the same before as after judgment.

3. One of these rules is, that mere forbearance towards the principal, in the absence of notice to proceed from the surety, does not discharge him.

4. Another rule is, that a promise to forbear for a definite time will not discharge the surety unless it be a promise binding in law upon the creditor, “ such as will tie his hands.”

5. Still another rule is, that no such promise is binding unless supported by a consideration.

By these rules we will test the effect of the forbearance actually given in this case. The facts disclosed by the record are, that on two different occasions the principal defendant in fi.fa. sought indulgence; that the plaintiff each time promised to forbear for one year upon the payment of a specified portion of the1 debt; that these payments were severally made as required, and the forbearance extended as promised. Were these promises binding upon the plaintiff in fi. fa. ? Did they, in law, tie his hands during the stipulated term of forbearance ? Certainly not, unless supported by a consideration.

In Pabodie vs. King, 12th Johnson’s Report, 426, this question came up directly between the parties to the promise of forbearance. The debtor paid a portion of the debt, upon a promise of a certain forbearance, which promise was not kept, and the debtor sought to shield himself under it. Per Curium, “the promise to forbear was a nudum pactum. In paying the $50 00, King did no more than he was legally bound to do, and the promise on the part of Pabodie was without any benefit to him, and occasioned no loss to King.” That is precisely this case. In the later case of Reynolds vs. "Ward, and others, 5th Wendell, 501, the same Court held, that “a promise to pay interest, during the time of forbearance, forms no consideration for the agreement to forbear, when the debtor is already bound to pay interest.” The Court say, arguendo, “the promise to pay interest” was a promise to do precisely what he, (the debtor,) was bound to do, without a promise. If the debtor’s promise to pay interest, creates no additional obligation, it is no consideration for a contract to delay.” In this case the question was made by a surety, as in the case at bar. We recognize as sound and well settled, the principles upon which these adjudications rest. Is a consideration less necessary to support a promise to forbear, than any other promise whereby the promisor loses an advantage or confers a benefit? When the principal debtor, D. Harrell, entered into the original contract, upon which the Court, gave judgment, condemning him to pay certain money according to its terms, he received a corresponding benefit — an equivalent from the creditor. Shall he be allowed, after the lapse of years, to set up the payment of a portion of this same money, as a consideration for a new benefit, and thus go on from year to year, piling benefit after benefit upon the primary consideration fully balanced in its inception ? If so, it were difficult upon the principle to find a nudtom pactum.

If, then, the hands of the plaintiff in execution were at no time “ tied ” in law, (to use the expressive phrase of Gibbs, C. J., in Orme vs. Young,) the surety, J. Harrell, might at any time have required him to proceed against the principal debtor. He did not so require — he was not vigilant — he remained quiet under his obligation of suretyship.

6. In Curan vs. Colbert, 3d Georgia Reports, 239, this Court held, that the security in fi. fa. was discharged because the plaintiff, after having caused the property of the principal defendant to be taken in execution, without the consent of the surety, dismissed the levy and gave time to the principal, and because at or before the expiration of the indulgence the property of the principal had been removed from the State, and he had become insolvent. And in Brown vs. Riggins’ executors, Ibid, 405, they held the surety in fi. fa. discharged, because indulgence, for a definite time, (before the expiration of which he became insolvent,) had been granted to one of the principals, and because the property of another principal, which had been taken in execution, was afterwards discharged from levy.

Those cases are easily distinguishable from this. Here, there has never been any property of the principal levied upon and afterwards discharged from the levy. Again, the last indulgence granted in this case, expired on the 1st November, 1844. At that time, and until the early part of January, 1845, (an interval of two months,) there was, of the principal debtor, property enough to have satisfied the fi. fa. in a county adjoining that in which the surety resided, which property was subject to the execution. During that interval the surety himself was threatened with a levy; inquired, with surprise, whether confidence in the principal had been lost, and only craved time to procure payment from the principal, or to have his property seized. This indulgence was granted by the sheriff to the surety, yet he did nothing for his own safety, but permitted the property of the principal, subject to the execution, to be removed from the State. Surely this case is not analagous to those of Curan vs. Colbert and Brown vs. Riggins’ executors.

7. The second allegation is, that after plaintiff’s promise to indulge his debtor for one year, and corresponding instructions to the defendant as his attorney, the latter caused certain junior fi. fas., (also under his professional control,) to be levied upon the property of the same defendant, and appropriated the money made under those levies to the junior fi. fas., in preference to plaintiff’s. It does not appear that the plaintiff’s instructions to defendant to indulge the debtor were qualified by any reference to the contingency of activity on the part of j unior j udgment credi tors. They were positive, to indulge upon a specified partial payment, the attorney being satisfied with the security. The payment was made. As between client and attorney, then, the latter was positively inhibited from levying for twelve months. But he had other clients, who ordered that their money be made. Was he then to levy and sell again and again under the fi. fas. of his vigilant, active clients, and give the benefit to his inactive, indulgent client, indefinitely postponing the former? We do not so understand the duties and obligations of attorneys. Besides, be it remembered, that after the claims of his vigilant clients had been satisfied, and after the indulgence of his forbearing client had expired, there remained, according to the evidence, property enough of the principal debtor within reach of and subject to the fi. fa., which, before this property had been assigned, was taken by the plaintiff from the hands of the sheriff, to whom defendant had delivered it, with orders to make the money, and committed to a newly constituted agent.

We have said we are by no means satisfied that the liability of the surety had been discharged, and connecting the subsequent conduct of the plaintiff with what we have already considered, and conceding, (for the argument,) that the question of the surety’s discharge was one of doubt and difficulty, we think he has discharged the defendant from all possible ulterior liability. The liability of the attorney depends upon the discharge of the surety, through his negligence and unskillfulness.

The surety was asserting by his bill in chancery against this plaintiff and defendant both, his discharge, by reason of their joint acts. They both, in their answers, denied his discharge. Pending this litigation, the plaintiff in error turns again to his principal debtor, without the concurrence of the defendant in error, upon the payment of a large sum of money, releases said principal and his surety, by express contract, from all liability, and thus terminates the litigation in chancery with the surety. The attorney is thus effectually precluded, by the act of the plaintiff in error, from bringing the. question of the surety’s discharge to the test of judicial decision. Having voluntarily, by express contract, discharged the surety, the plaintiff in error cannot be permitted now to turn upon his attorney and hold him responsible for alleged prior negligence and unskillfulness, whereby in law said surety had been discharged.

In this case the defendant relied upon the Statute of Limitations. The acts of negligence and unskillfulness, charged in the plaintiff’s declaration, were done in the years 1842 and 1843, and the action was commenced in the year 1854, an interval of more than ten years, whereas, by our Statute of Limitations, actions of this character must be commenced within four years after' the right of action accrues. The plaintiff, however, alleges, in avoidance of the statute, that he was ignorant of the acts complained of until the month of April, 1853, when the cause of J. Harrell vs. Crawford and Gaulden came^ on to be tried, and the proofs were developed.

8. The doctrine is well settled, that in an action against an agent for negligence or unskillful ness, the Statute of Limitations commences to run from the time the negligent or unskillful act was committed, and plaintiff’s ignorance of the negligence or unskillfulness cannot affect the bar of the statute. 3 Barn. & Ald., 288; do 626; 3 Barn & Cress., 149; 5 Barn. & Cress., 259; 2 Carr & Payne, 238; 3 John. R., 523, (side); 20 John., 33; 5 Wendell, 30; Cheeves, 22; 2 Strob., (L.,) 344.

But, in this case, the plaintiff was informed by the bill in chancery of J. Harrell vs. himself et al., that these acts had been done by the defendant, and that J. Harrell insisted, he was thereby discharged. The record does not show precisely •when plaintiff was served with a copy of this bill, but it appears he answered it on the 22d of May, 1845. Could he (if ignorance were a sufficient reply to the statute) claim to have been ignorant after that day? In a view of the case most favorable to him, were not the allegations in this bill, verified by the complainant, enough to put him upon enquiry? Would the utmost stretch of liberality to him allow the statute to slumber after this information reached him ?. yet he slumbered after this more than eight years — more than twice the statutory limitation.

It was urged in the argument that the statute did not begin to run until the case of J. Harrell vs. Crawford and others was ended. But it would seem from the record that that case never reached a final decree. It would seem that a decree was rendered in 1847, from which an appeal was taken, for a rehearing as a matter of right, under our peculiar judiciary system, and that the case was finally arrested by the compromise in 1858. If the Statute of Limitations was held in abeyance until final decree in that case, it follows that no right of action accrued anterior to such decree, and as there-never was a final decree in that case, it would seem that no right of action ever has accrued to the plaintiff, so that his case is not aided by this argument.

In every view of the case we are abundantly satisfied with the verdict.

9. As regards newly discovered evidence, that ground of the motion for a new trial must fail under two oft repeated rulings of this Court:

1. The newly discovered evidence was merely cumulativé.

2. The exercise of due diligence, to which other like evidence used on the trial should have stimulated the plaintiff, would readily have disclosed the facts if they exist.

Let the judgment be affirmed.