Bird v. . Ross , 12 N.C. 472 ( 1828 )

"April 10, 1822, received of George Bird, an order to the Sheriff of Rutherford County for the amount of Peter Fisher's judgment that he obtained for Mark Bird, deceased, for thirteen hundred dollars, and for six months interest, which we will account for.

"ARTHUR CLARKE, [L. S.] "SAMUEL J. ROSS, [L. S.]"

(473) The statement of the case was rendered exceedingly obscure by a transposition of some of the lines of the original in making out the copy for this Court. It is inferred that an execution on the judgment mentioned in the above deed had been levied on a tract of land called the High Shoals, which had belonged to Peter Fisher, and was alleged by the plaintiff and defendant to have been fraudulently conveyed to his son, Jacob Fisher; that an action of ejectment was prosecuted by the defendant for that land, in the name of the heirs of Mark Bird, of whom the plaintiff was one, and that if successful in the action the defendant was to have the land and pay the residue of the judgment; otherwise, it was to be lost by the plaintiff; evidence of this kind was offered to the jury. The plaintiff contended that Ross either had received full satisfaction from Fisher for the judgment or had so fraudulently conducted the action of ejectment as to prevent a recovery therein.

His Honor, Judge Norwood, however, instructed the jury that by the deed above set forth an equitable title to the judgment mentioned in it vested in Clarke and Ross, and that it gave them full authority to collect and recover the amount of it, and they were bound to pay the plaintiff the balance of the judgment, whether they collected it or not. A verdict was returned for the plaintiff, and the defendant appealed. The deed of 10 April, 1812, with the indorsement, is evidence that Clarke and Ross had become the equitable owners of the judgment. But it furnishes no evidence of the terms and conditions of the transfer. They are left to be implied by law, from the circumstances of the transaction. If Clarke and Ross advanced, or agreed to advance, the full amount of the judgment, with interest, without having (474) a day of payment given to them, this imposed on Bird a guarantee that the money should, or might with reasonable exertions, be collected; for it is not to be presumed that Ross and Clarke would pay or agree to pay the full amount without having day of payment given, or some such equivalent, and take upon themselves the risk of collection. In such case, therefore, the risk of collection must have been assumed by Bird, for the law always looks to the consideration in raising the promise. If less than its amount was given, something like its market value, the law placed the risk on Ross and Clarke, for they had been paid for it in the reduction of the price. If that was the fact, they would be bound, whether they collected the money or not. The only obligation imposed on Bird was that the money called for by the judgment was due, and I suppose that there was such a judgment. I think, therefore, that the judge erred in informing the jury that the defendant was liable to pay the whole amount, whether he collected the money or not. In the absence of all evidence as to the special price agreed to be paid for any article, the market value is the one which the law presumes to be understood, and fixes that as the price. But there is some evidence from which the jury might properly come to a conclusion what was the agreement, viz., the after conduct of the parties; for although the conduct of the parties cannot be used to explain a contract, it is the best evidence to prove what that contract is. I think, therefore, that there should be a new trial; for although the evidence might have satisfied the jury that Ross had or might have received the money, or was guilty of fraud in not attending to the suit for the High Shoals, these are facts of which the Court can form no opinion. Possibly the jury decided on the ground first mentioned by the judge, in which we think there was error, and for that it must go before a jury again.

PER CURIAM. Judgment reversed.

(475)