Hyatt v. Johnston

Mr. Justice Sterrett

delivered the opinion of the court,

While it was conceded 'by the defendant that the first firm of CraAvford, Chamberlin & Co., of Avhich he was a member, was indebted to plaintiff for merchandise, .in a larger sum than that claimed in this suit, it was contended that acceptances of the second firm Avere taken by the plaintiff, in absolute payment of that indebtedness, and the defendant was thus released therefrom. The plaintiff, therefore, had a clear prima facie case, and the burden was on the defendant of proving that the draft in suit was the acceptance of the second firm, and that it was received by the plaintiff in absolute payment of the original debt.

For the purpose of proving these facts, the letters referred to in the bills of exception, were offered and admitted. The plaintiff insisted that they were insufficient, and requested the court to instruct the jury, “ That the burden of proving that the plaintiff took an acceptance of the new firm, as absolute payment, is on the defendant, and that the defendant has given no evidence from which the jury would be warranted in finding that the plaintiff agreed to take the said acceptance in absolute payment.” This was a controlling point in the case, and the refusal of the learned judge to charge as therein requested is assigned for error.

An examination of the testimony bearing on this proposition, leads us to the conclusion that it should have been affirmed. Viewing the testimony in its most favorable light, there was no evidence from Avhich the jury was justified in finding that plaintiff agreed to take the acceptance as absolute payment and thus release defendant from an acknowledged liability. When it' is claimed that a creditor has agreed to accept the note or obligation of another, and in consideration thereof release his debtor, the proof of such novation should be at least clear and satisfactory. In this case it can scarcely be said that there was even a scintilla of evidence to show that the acceptance was taken in absolute payment. Since the scintilla doctrine has been exploded, both in England and in this country, the preliminary question of la.AV for the court is, not whether there is literally no evidence, or a mere scintilla, hut whether there is any that ought reasonably to satisfy the jury that the fact sought to be proved is established. If there is evidence from which the jury can properly find the question for the party on whom the burden of proof rests, it should be submitted; if not, it should be withdrawn from the jury : Ryder v. Wombwell, Law Rep., 4 Exch. 39.

The letter of April 1st 1873, was offered for the purpose of showing “ the kind of transactions carried on between the plaintiff and the” second firm, and also, to show that the goods, purchased by the first firm, were paid by the acceptances, one of which is the draft in suit. Standing alone, as it did when offered to the court, the letter would appear to be relevant, and perhaps material, but when read in connection with that of March 26th 1873, to which it is a reply, it contains nothing to justify the inference sought to be drawn from it. In the last-mentioned letter, Crawford, Chamberlin & Co., after referring to the dissolution of the firm, say: “ Both Mr. Brown and Mr. Johnston, who compose the Co., being wealthy men, insure to all creditors the payment of paper at maturity, as well as guaranteeing the entire indebtedness of the concern.” There is not the slightest intimation here that defendant was released; on the contrary, his continued liability is distinctly recognised. They then refer to the stock purchased from plaintiff, out of which the indebtedness to him arose, and propose to return a portion of it. It was in reply to this proposition that plaintiff wrote, “ it was all settled for in your acceptances I now hold.” Even if this could be. regarded as an admission that the acceptances were those of the second firm, it surely cannot be construed to mean that they were taken in absolute payment. The language of the letter, especially when considered in connection with the one to which it is a reply, does not justify such an inference.

The letters of March 1st and 22d 1873, offered to show, among other things, that plaintiff was negotiating with the second firm for the closing of the old account, knowing that defendant was not a member of that firm, &c., were wholly irrelevant for that purpose. It is quite clear-that neither of these letters refers to the old account on which plaintiff’s claim is based, nor to the acceptances by which that account was balanced on his books. They evidently relate to subsequent transactions having no connection with plaintiff’s claim-against the first firm.

If there was an agreement to take the second firm for the debt of the first, and release defendant from all liability, it was somewhat singular that none of the parties were called to prove the fact. The plaintiff’s testimony was distinct and positive that no such transaction occurred, and there is nothing in the correspondence, given in evidence, to contradict him. He says he drew on the first firm, by whom the debt was contracted, for a sum sufficient to cover their indebtedness, and when he received their acceptances he credited them and thus balanced the account. There is nothing in the.testimony, when properly considered, that is inconsistent with the continued liability of the defendant.

Judgment reversed and a venire facias de novo awarded.