Burch v. Hubbard

Mr. Justice Walkee

delivered the opinion of the Court:

This was an action of assumpsit, by appellant, in the Superior Court of Chicago, against appellee, upon his acceptance of this bill of exchange:

££ ($13,000.) Chicago, 16th April, 1861.

££ Thirty days after date, please pay to ourselves, or order, thirteen thousand dollars, at I. H. Burch & Co.’s Banking Office here, value received, and charge the same to account of

S. HOLMES & SOH.

££ To Messrs. G. S. Hubbabd & Co., 1 Chicago, Ill.” j

There were various payments indorsed on this bill, amounting, in the aggregate, to $6,500, made at different times. The declaration contained a special count on the acceptance, and the common counts. Appellee filed a plea of the general issue, and two special pleas. The first special plea was, that appellee had, after the making of the bill, delivered to appellant a quantity of pork, of the value of $16,000, in full satisfaction and discharge of the several sums of money mentioned in the declaration, and that appellant accepted it in full discharge and satisfaction of the same. The second special plea was a set off. At the trial, appellant withdrew the plea of the general issue, and the cause was tried upon the special pleas.

For the purpose of enabling Holmes & Son to purchase a lot of pork in Milwaukee, appellee accepted the draft, and it was discounted by appellant; some time about the last of April, or the fore part of May, appellee, learning of the failure of a house in Hew York, to whom he had shipped a large amount of provisions, and upon whom he had drawn largely, and fearing the failure might involve his firm in financial ruin, left Chicago for Hew York, but, on leaving, requested Charles P. Hunt to call, the next morning, upon appellant, and ascertain whether he would receive a warehouse receipt of Holmes & Son, and release him, and, if he should consent to do so, then to procure the warehouse receipt, deliver it to appellant, and procure his release.

Hunt testifies that he called upon appellant the next morning, at his bank, stated to him the facts, and communicated the request of appellee, and after making a statement of the amount and character of the pork proposed to be pledged as collateral security, and to obtain the release of appellee, after making a calculation of its value, appellant agreed to receive the receipt and release appellee. Hunt thereupon procured the receipt, and delivered it to appellant, and proposed that he should erase appellee’s name from the acceptance; but he says it was understood, if the receipt was obtained and delivered to appellant, he would release appellee; that nothing was said about any further communication with him in relation to the matter; that the property was not sold to appellant, but the receipt was delivered to appellant as security for the draft; that the receipt was indorsed in blank, and not filled up at the time.

Appellee introduced evidence tending to show that the meats were worth more than enough to have paid the draft, when it matured, but they were not sold at that time, and meats continued to decline for some time afterwards. Appellant subsequently failed, and made an assignment for the benefit of creditors, and this draft was passed to his assignees as a part of his assets. Dexter, who was the assignee to whom the draft was delivered, stated that the meats were smoked, shipped east, and sold for the sums endorsed on the draft; that appellee set up no claim that he was discharged from its payment, until a short time previous to the commencement of the suit. Appellant denied that the receipt was taken in discharge of appellee’s liability, but testifies that it was in pursuance of an agreement entered into when the draft was discoxxnted; and appellee, in his testimony, denies that any-such agreement was made, or that he had any thing to do in negotiating the loan, beyond the acceptance of the bill.

The jury found a verdict for appellee, thereby giving credit to the testimony of Hxxnt and appellee, rather than to appellant. The evidence being conflicting, it was for them to consider it, and from it to find the facts; and having so found, we shall consider the defense as established by the evidence.

It is, however, urged, that, although the first special plea was proved, it nevertheless does not constitute a legal defense. Was, then, the receipt, when received by appellant in discharge of appellee’s liability as an acceptor, in law a discharge of that obligation ? It is urged that there was no consideration to bind appellant on his agreement to release appellee. It will be observed that the bill was not dxie at the time this arrangement was entered into by the parties. Appellee was then under no obligation to place this pork in the hands, and under the control, of appellant, whatever he might have felt to be Ms moral duty, at a time when he supposed he was financially ruined, and that he would be compelled to make an assignment for the benefit of Ms creditors. When the receipt was given, he could have sold the property, we presume, for more than enough to pay the bill, as it appears to have been originally pxirchased for sixteen thoxisand dollars, and the evidence seems to prove that it was, at the maturity of the draft, worth more than enough to have paid the amount. By giving this receipt, the control of the pork was taken out of the hands of appellee, and he was prevented from disposing of it to meet the draft, as he then held it as an indemnity against loss by this acceptance. This would seem to be a sufficient consideration to support a release of this character, and it does not matter whether appellee was a principal or a surety, so far as the discharge may be involved. Had the pork, on the maturity of the bill, been sold, and failed to produce the requisite sum, it would, nevertheless, have operated as a release of appellee. Had it been a promissory note, and property had been delivered as this was, with an agreement that the maker should be released, no reason is perceived why it would not have satisfied the note and discharged the maker.

It is held that an act which is a benefit to one party, or a disadvantage to the other, constitutes a sufficient consideration to support a contract. In this case, the fact that appellee lost the power to sell and convert the property, if it had been but for the nineteen days which the bill had to run, was an inconvenience, and a loss of the use of the proceeds of such a sale, for that period, to say nothing of the ultimate loss, by depreciation, which ensued after the bill matured.

It is also urged, that the evidence was not admissible under the pleadings. From what has been said it follows that it was. The plea was, that the delivery of the receipt, which placed appellant in the control of the property, was upon the condition that appellee should be released. We have seen that such a transaction would operate to release appellee, whether principal or surety, and, if so, the plea presented the defense, and, consequently it could be proved. We see no substantial difference between a principal and a surety, when such a release is made by the holder. He receives the property, agrees to look to it for payment, and to release the acceptor, and no reason is perceived, in justice or fair dealing, why the holder should not be required to perform his agreement If loss has ensued, it was the fault of appellant, as, being the holder of the receipt at the maturity of the bill, he could have sold the property, and, from the proceeds, paid the bill. Having failed to do so, upon what principle can it be held that he may ignore the release and collect the money from appellee, and impose upon him the loss ?

The judgment of the court below must be affirmed.

Judgment affirmed.