Miller v. Stem

March 25.

Bell, J.

The competency of Boas and Saeger, as witnesses for the defendant, after being released from liability for the costs of suit, was affirmatively determined when this case was here before: 2 Barr, 286; and nothing was advanced upon the last argument to induce us to depart from the conclusion then announced. The question does not fall within the doctrine of that class of cases, beginning with Post v. Avery; the object of which, we have more than once declared, was a return to the common-law rule, first departed from in Steele v. The Phoenix Ins. Co.; Carter v. Truman, 7 Barr, 325. See also, on this point, Berghaus v. Alter, 9 Watts, 386; Cameron v. Paul, 6 Barr, 322; and Talmage v. Burlinghame, 9 Barr, 25.

The admissibility of the fact, to which E. J. Saeger was permitted to testify, that in August, 1842, and subsequently down to the time of the assignment made by Boas and Saeger, there were goods enough in their store to pay the demand in suit, is contested in this court on two grounds; first, that no averment of actual loss, sustained by the defendant from the negligence or forbearance of the plaintiff, was contained either in the plea or notice of special matter; and, therefore, as the evidence objected to was not pertinent to the issue tendered, it Was, secondly, irrelevant, and consequently improperly received. But, so far as can be gathered from the record, the second was the only ground of objection taken on the trial of the cause; or at least it does not appear that the want of special notice was at all relied on. Now in Hobson v. Craft, 9 Barr, 365, we have said, and I think correctly, that where an objection to evidence is founded on alleged want of notice, it should be so specifically stated; for otherwise it is impossible to say, whether notice was or was not givenjsince.i''without a call made for it | it cannot appear of record how the fact was. If this be not done, it is too late to take such an exception in the Court of error. Setting aside then this ground of resistance, the evidence was certainly pertinent to one of the subjects of inquiry involved in the cause, to show the defendant has incurred actual- loss from the alleged misconduct of the plaintiff in giving time to the principal debtor, without the knowledge or assent of the alleged surety. But was not this evidence strictly receivable in support of another branch of the defence, duly set out in the plea ? This was, that at the execution of the bill single, it was covenanted that the obligee should sue it out at maturity, if the money were not then paid. Now, whether the defendant eventually succeeded in establishing the fact of such an arrangement to the satisfaction of the jury, is a point of no consequence in the determination of this question of evidence; for certainly he had a right to adduce every circumstance necessary to such a defence; though finally he failed to prove it in every essential feature. And I think it cannot be doubted that, in this connexion, it was of importance to show the pecuniary condition of the principal debtors, at the moment their liability to pay became absolute, and afterwards. Even if it be admitted that this was not imperatively necessary to make good this line of defence, we cannot say it was so entirely independent of it as to be foreign and impertinent. Would not the solvency of the principal obligors at the ihaturity of the bill, have presented a legal excuse for not pursuing them at law ? And if so, was it wholly irrelative to show their continued ability to pay, down to the period of their assignment in trust for creditors ? But it is a sufficient answer to an objection of this character, that the offered testimony tends in the slightest degree to sustain any material averment. If it may have this effect under any of the contingencies to which a cause in the progress of trial is liable, it would be hazardous to exclude it; and it may at least be said of the proof now in controversy, that it is corroborative of the defendant’s allegation of the plaintiff’s agreement to accept Boas and Saeger as principal debtors, and that he subsequently undertook to indulge them with an extension of the time of payment; since it is much more likely these arrangements would be made with solvent traders, than with those who were bankrupt, or likely immediately to become so.

The evidence embraced in the fourth bill of exceptions was also relevant, as it tended to establish the allegation of the plaintiff’s agreement to procure the signature of Joseph R. Saeger as a party to the obligation. The fact that the obligor, E. J. Saeger, informed his father of this agreement immediately upon his return home, and before any default on the part of the plaintiff, offered, certainly, some evidence that such an understanding had taken place between the parties. Nor is it obnoxious to the objection that it was mere hearsay. It is rather to be regarded in the light of a fact, consisting of a communication made to a proposed party in the transaction, and his assent to it. Its competency is in no degree impeached, because the fact owed its existence to oral intercourse. It does not therefore come within the principle which excludes mere hearsay, or conversations between third persons in the absence of him who is to be affected by them.

We have failed to diseern any error in the charge of the Court. The facts in proof seem to have been candidly stated, and the legal principles applicable to them lucidly given to the jury. One ground of defence was, that the agreement of the parties present at the execution of the note was that General Saeger was also to become a party to the bill single, as one of the sureties. In reference to this, the Court instructed the jury that, if the other sureties consented to lend their names only on condition that Saeger should join them in this responsibility, and Miller agreed to make application to Saeger for his name, but neglected to do so, though the former was willing to comply with the arrangement, the contract was not perfected, through default of the plaintiff, and, consequently, he could not recover.

It is not to be doubted that this was a true exposition of the law. Such a defence, sustained by proof, goes to the whole claim, and not merely to such proportion of it as Saeger might have been compelled to discharge had he become a co-surety. The case was expressly put upon proof of a condition influencing the 'action of the defendant; and if such was the case, surely he had a right to insist upon its violation as affording him full protection. If it were merely understood that Miller was to make an effort to procure Saeger’s name, without reference to any effect it might have upon the obligatory character of the defendant’s undertaking, a failure to make the effort might not operate to discharge Stem. But the position assumed by the defendant is the presence of an undertaking in the nature of a condition, and this is the view in which this part of the case was presented to the jury. Was there evidence to justify this ? I think there was. It may not have been conclusive, or, indeed, stringently convincing; but its defects were open to observation, and no doubt, on the trial, these were fully and cogently commented upon. It is enough to justify the instruction given, that there was some proof of the alleged agreement, which the Court necessarily referred to the jury. It is impossible to say what conclusion they adopted, since the allegation of indulgence extended by the holder of the bill to the principal debtors, if proved, justified the verdict. As this branch of the defence was perhaps more clearly established than the other, it is probable the decision of the case turned upon it.

But it is urged that there was neither sufficient proof of the defendant being a surety, nor of a contract to forbear suit against Boas and Saeger, for a definite period, upion a sufficient consideration. The idea seems to be that, as Stem was a principal in the original bill single, he must be taken to have so continued as a party to the second obligation, inasmuch as the debt, to secure which these were given, was contracted by himself and his then partner. But this argument overlooks the material fact that he had withdrawn from the partnership, after transferring the stock in trade to his copartner, who, it is testified, undertook to pay the debt in question. It is true this arrangement could in no degree affect Miller’s rights, who might have insisted on retaining his hold on Stem, as principal debtor. But had this course been pursued, the latter might have refused to give a new obligation, and thus compelled payment of the old out of the stock in the store. • There is evidence that this was his determination; for it is in full proof ho refused to execute the second obligation, except in the character of surety, and that Miller agreed to accept him in that character. If, in pursuance of this arrangement, the first bill single was surrendered upon the execution of the second, it is in vain to say Stem might be charged as principal, though the claim against him as surety failed. By the second arrangement, the original transaction was cancelled and obliterated, and the parties stood towards each other as if it had never existed. If, then, the relation of creditor and surety existed, was there any competent proof, upon which a jury might be called to pass, of an agreement to give a further definite time for payment to the principal debtors, without the knowledge of the surety ? I agree that, in order to ' operate a discharge of the surety, the evidence of such a contract ought to be so full and explicit as to disclose its nature, terms, and consideration. But when this is done, it is for the jury to say whether, in these particulars, the evidence is satisfactory. The Court cannot assume this function, without committing a usurpation under our system.

In the instance in hand, the President of the Common Pleas very fairly called the attention of the jury to the circumstances which led to the execution of the second bill, and the facts which took place after it fell due; and, stating the legal principles that were to govern their deliberations, submitted to them the disputed facts of suretyship and forbearance. I have already said, of the first of these there was proof, and the same observation is true of the second point, if the testimony of John D. Boas, in some degree sustained by his partner, Saeger, is at all to be relied on. He swears that, at the suggestion of Miller, made after the note matured, in the store of the partners, he paid Miller $3 or $5 to purchase an extension of time until the succeeding July, which Miller expressly agreed to give. Here, then, is proof of place, circumstances, consideration, and definite time, followed by the forbearance stipulated, fully sufficient to satisfy the exigencies of the note, of which the answers given to the plaintiff’s points, taken in connexion with the general charge, we think sufficiently instructed the jury. It may be they ought not to have given credence to the witness, but this was not the fault of the Court. But the plaintiff complains that it was remiss in not instructing the jury altogether to discredit the evidence delivered by John P. Boas, because of the alleged contradictions and discrepancies observable on a comparison of his former testimony with that given on the trial. Had the Court done so, it would have been error. The credit due to witnesses is a subject for the jury, and there is no rule which dictates the entire discredit of a witness who varies in his statements, unless the contradiction be satisfactorily explained by himself. He is undoubtedly entitled to an opportunity to do so: 1 Greenleaf’s Ev. § 462 and note; but his failure of success will not necessarily destroy liis credit. It would be a harsh rule, indeed, that worked such a consequence, while the tribunal might be entirely satisfied, aliunde, of innocent causes producing the variance. The Judge who tried the cause justly remarked that much depends on the mode of examining a witness, and the distinctness with which his attention is called to a peculiar aspect of the case. He might have added, that ingenuous and unpractised witnesses sometimes become so confused under the severities of a cross-examination, particularly where contradictions are charged upon them, as to be incapable of giving explanations, although all who hear are satisfied of the deponent’s honesty. Here, Boas was attacked under the allegation of discrepancies suggested by dishonest views. The Court told the jury if they thought such was the fact, they ought to disregard all' he had said, but, otherwise, they were not bound to do so. We must look at this instruction with an eye to the ground upon which it was attempted to impeach the witness; and so regarded, we do not find any error in it.

On the whole, we are satisfied the trial of the cause was properly conducted, and the instructions given to the jury correctly founded. Nor is there any soundness in the complaint that the Court declined or evaded the duty of specifically answering the plaintiff’s points. The responses were sufficiently clear, and very properly looked to all the facts in proof.

Judgment affirmed.