Ege v. Kauffman , 1 Watts & Serg. 120 ( 1841 )

The opinion of the Court was delivered by

Sergeant, J.

The facts of this case are so obscure, that it is difficult to be clearly understood. It would seem that in August 1837, Moore and Biddle, iron masters, gave to Joseph Kauffman (not the defendant) an agreement in writing, to deliver to him, in thirty days after demand, at their furnace, 32§ tons of pig metal. On the 11th of September 1837, Joseph Kauffman endorsed thereon an order on Moore & Biddle, to deliver to A. G. Ege, (the plaintiff,) on demand, 20f tons good forge pig metal, balance due of 32f tons on the within order. There is further endorsed on it, without date, a receipt by Barnitz of 12 tons, A. G. Ege 8 tons, M. G. Ege 6 tons; showing a balance on the 82f tons of 6| tons. This order, it would seem, was delivered to the plaintiff, but at what time does not appear, nor when Barnitz received his 12 tons, though it would appear that Barnitz must have received the 12 tons before the endorsement, for it states that 20f tons were then the balance due. In August 1839, the defendant, Abraham Kauffman, received two horses from the plaintiff, and in payment gave him his agreement in writing to deliver to him at Mooi’e & Biddle’s furnace, 6|- tons of metal, at any time he might call. This, it is to be observed, was a positive engagement on the part of the defendant, binding himself personally to deliver at the furnace, when called for, 6f tons, without any condition to be performed by the plaintiff.

The plaintiff, under these circumstances, sent a person to the furnace, with the agreement of August 1839, to demand the 6f tons. Moore & Biddle refused to deliver them, unless the original agreement of August 1837 were produced and surrendered to> them; and the question is, whether the non-production to Moore & Biddle by the plaintiff of the original agreement is a sufficient excuse to the defendant in this action.

If the demand of the 6§ tons by the plaintiff had been on Moore & Biddle, under the original agreement as assignee or holder, it would have been the duty of the plaintiff to produce it to them before they could be sued for refusal to deliver the iron. But if the demand of the iron was under the agreement of 1839, which was the defendant’s agreement, and not that of Moore & Biddle, it would be the duty of the defendant by that agreement to deliver the iron without the plaintiff’s producing the first agreement, unless the defendant could show that the plaintiff had in some way engaged himself to do so. For such is the tenor of the written contract of 1839, and we cannot introduce terms not contained in it. It would seem that though the plaintiff had an assignment of the agreement of 1837 from Joseph Kauffman, yet, for some reason or other, it was not deemed effective, for he obtained in payment of the horses, a new and distinct engagement from the defendant, Daniel Kauffman, of what seems to be the same 6f tons of pig iron, which was the balance due on the agreement. The reasons of his doing so are not apparent. The objection to the plaintiff’s recovery is of a strict kind, and goes to defeat his claim if the verdict stands. It ought, therefore, to be clearly shown that the defendant was absolved from his engagement to deliver the iron, before the objection should be sustained. The mere possession by the plaintiff of the original agreement, without any further circumstance, does not seem to be sufficient for that purpose, as the defendant might have provided, by some arrangement with Moore & Biddle, that the plaintiff’s demand should have been complied with by them; and the onus of that must be considered as assumed, under the written agreement of 1839, by the defendant, and not by the plaintiff.

We think there was no error in the admission of Moore as a witness for the defendant. It does not appear that he is in any way interested in the event of this suit.

Judgment reversed, and a venire facias de novo awarded.