Colgrove v. Tallman , 2 Lans. 97 ( 1869 )

By the Court

— Foster, J.

There is no question, but that the report and judgment were erroneous in amount,, and that they include $30.47 to which the plaintiff was- not entitled; but the- judgment should not- he reversed and a new trial granted for' that reason alone; if the plaintiff stipulates to deduct that amount from the-judgment. .

There is quite as little doubt upon the- evidence, that the finding of fact, that the letter of Tallman to Golgrove. informing him that- Barnes was to pay the note and requesting hire to collect it at once, was received by Colgrove after the failure of Barnes was erroneous. There is no evidence to support the finding. Tallman testifies that the letter was sent in 1864, and even when examined in chief, Colgrove testified: My impressions are very indistinct of that letter, but I should say that I received it Tyefora Barnes’ failure, if at all.” And, on his cross-examination, he said: “ I have an indistinct impression I received a letter from Tallman; I cannot say I did or did not; I cannot pretend to state contents, having an indistinct impression; I have made search for it; I have no •definite recollection as to the time when I received it.”

It was also received by him before the time when Barnes executed the receipts for the 7-30s, and doubtless in the year 1864, for such is the testimony of Tallman, and while Col-grove thinks he received the letter, does not contradict Tall-man, either as to the time he received it, or as to its contents; stating in substance that he cannot speak as to either, because his recollection in regard to it is so indistinct.

From the times when Barnes informed Colgrove that he was to pay the note, and Tallman sent him the above mentioned letter, as between Colgrove and him, he was the surety of Barnes to the same extent, as he was so, as between himself and Barnes. And the rule is the same whether he became so after the making of the note from the time the plaintiff had notice of it, as it would have been if Tallman had originally been surety for Barnes, and that fact was made known to Colgrove.

This is not, however, of any importance so far as any extension of credit to Barnes is concerned. For the case does not show any agreement on the part of the plaintiff to give time to Barnes for payment of the note; but only upon the question, whether as to Tallman the transaction between Barnes and Colgrove was or was not a payment.

Colgrove went to Barnes after he knew from both of the defendants that Barnes alone was to pay the note. He demanded of him the payment for the purpose of investing the amount in government securities, so as to be exempt from taxation to that amount. He does not claim that he took the . receipt as collateral to the note, hut he insists that he took it entirely independent of, and as having no connection with the note. How, why did he so take it? If taken as he claims, it was without any consideration whatever; it was not legal evidence that he held any 1-30 notes -in the hands of Barnes. He could not use it for the purpose of reducing his assessment. It was no better in his hands than waste paper, and any affidavit or oath ■ of his founded thereon, for the purpose of getting rid of taxation would have been perjury on his part. And why did he not then insist upon the payment of the note in moiiey, so that-he could make the investment which he desired to make.

Upon his theory, all that took place between him and Barnes- on that • occasion, was. not only a useless and idle ceremony, but too foolish for business men to be engaged in. But if it was what he claims it to be, why did he immediately, after Barnes’ failure, call for the delivery of .the 1-30 notes. He must have known that he had no claim on Barnes for such notes ; that, the receipt was 'entirely void for want of consideration ; that the execution and delivery of .it to him was only a farce, and yet he sends his lawyer to demand it upon the receipt as his own, and during all the intervening jtime, he had notin any way claimed that Tallman owed him anything. All this is too incredible to be believed, when opposed by the direct testimony of Barnes, that the title ■ to the United States notes really passed from him to Colgrove, .and that he thereafter held them.for Colgrove, ■ and to be delivered to him when he should produce the receipt; and when the story of Barnes is so supported by the subsequent acts of the plaintiff. He knew that Tallman was surety. • He entered into a transaction with Barnes, by which the absolute, title to the government notes passed to him, and passed to him in lieu of what he had then demanded — payment of the note in question ; and Barnes immediately thereafter informed Tallman of what had been done, and that he had paid the note; and I think upon all the evidence in the case, lie was estopped from afterward claiming that the note in question was not paid. He well knew that the 7-30s were good, and Barnes being in good standing, he was willing to take from' him the evidence ■ that they were transferred to him, and intrust .him with the possession of them; and he doubtless thought he could rely upon Barnes to have them forthcoming when, he should demand them. And he evidently did so. And whether such arrangement was afterward changed between him and Barnes is wholly immaterial to Tallman. It is enough for him that by the transaction, when the receipt .was given, the 7-30s were taken instead of the note.

It.would lead to manifest injustice, if such a transaction as the one in question were not held to estop the plaintiff from claiming that the note was not paid. It is a question of evidence upon the fact,-whether the note was paid or not, and I think the finding was in conflict with the evidence, which well established that the receipt for the stock was taken in payment and discharge of the note.

■ A new trial should be granted, with costs to abide the event, and the order of reference should be discharged.

All concurring. Hew trial ordered and order of reference vacated.