Depeau v. Waddington , 6 Whart. 220 ( 1841 )

The opinion of the court was delivered by

Rogers, J.

This was an action of assumpsit on a promissory note, drawn by the defendant, Depeau, in favour of Robinson & Smith, or order, and by them endorsed to the plaintiff. The plaintiffs 'lent Robinson & Smith fifteen hundred dollars on a note; and as a collateral security, the latter firm placed in the hands of the former a bond for twenty-three or twenty-four hundred dollars, of a certain Edward Miller to Thomas S. Smith, one of the partners of Robinson & Smith. Sometime after, Robinson called on the plaintiffs, and stated that he wanted to take the bond away, and to get it discounted. Robinson & Smith, a week or so after the delivery of the bond, paid to Ogden & Co. eight hundred dollars, and transferred the note in suit to them as collateral security, for the amount yet remaining due. The plaintiffs gave up their claim upon the bond for the note, and the eight hundred dollars. It seems that the note of Robinson & Smith to the plaintiffs was protested; that one of that firm came to the plaintiffs, and stated that if they would lend him the bond for a day, he had an opportunity of getting the money upon it, and would then pay the fifteen hundred dollars. The bond was delivered to him for that purpose; but the bond was neither redelivered to the plaintiffs, nor was the amount due on the note paid according to the understanding between them; but sometime afterwards—how soon is not recollected, nor is it material—eight hundred dollars in cash were paid, and the note in suit was transferred to the plaintiffs, in lieu of the bond, and as a collateral security for the note. It may be inferred from the evidence, although no direct proof is given of it, that the bond was assigned for a valuable consideration, or paid by the obligor: that the money was received by Smith, one of the obligees; and that eight hundred dollars were paid of the proceeds. Robinson, of the house of Robinson & Smith, says, that the bond was delivered to the deponent’s firm on payment of part of the fifteen hundred dollars, upon the understanding, that the deponents would immediately pay them the balance of the amount due; that the object of the firm in getting the bond was to have it discounted, and pay the plaintiffs at once; the bond being for a considerably larger sum than was due. He does not recollect whether the plaintiffs afterwards asked his firm for other security, although they may have done so. He thinks the note in suit was, a few days after the bond was delivered up by tire plaintiffs, proffered to them, as collateral security for the balance due. They handed over the note about a week after the bond was delivered up, but after they had secured the bond; that is, as I understand it, after they had received the money for it. No other, or new consideration was given by the plaintiffs for the note. The understanding was, that the deponent’s firm was to pay the plaintiffs immediately the balance due them; that the bond was to be discounted at once for that purpose. Nothing was stipulated about the security, because the balance was to be immediately paid in cash. The note in suit was given for the purpose of being discounted for the sole accommodation of Dupeau.

The defendant alleges that there was no consideration for the note in suit; that the transfer of it jEo the plaintiffs was in fraud of his rights; that it was placed in the hands of the plaintiffs as collateral security, and that consequently there is the same equity existing as between the maker and payee. The plaintiffs admit that there was no consideration between the original parties; that the payee.could not recover, and that if pledged as a collateral security, without more, for a pre-existing debt, they would be in no better situation than the first holder; but they contend that there was an exchange of securities in substitution of the note for the bond, or the proceeds of the bond, and that they were innocent holders for value.

Several exceptions have been taken to the charge of the court, none of which have been sustained. The charge is clear and precise, and substantially answers all the points which were made, and is as favourable to the defendant as he had any right to expect. The court leave the facts to the jury, and if there be any error, it is the application of the evidence to the points ruled. Li the investigation of the case it becomes material to ascertain what are the facts found by the jury, and to which their attention was directed by the court. They are in substance, these. That placing the bond in the hands of Robinson & Smith, who acted as the agent of the plaintiffs, was for a particular and special purpose, viz., that they would immediately dispose of the bond; which they did; and that they would pay over a portion of the money to them; and that in the meanwhile, the proceeds would be held by them as a pledge or security for the amount due on the note ; that the money raised by the sale or payment of the bond was a substitute for the bond; that as the bond was a collateral security, so was the money arising therefrom. That at the time they stood in the relation of principal and agent, the parties came to an arrangement, and in consideration that the plaintiffs would relinquish all claim to the money, whether lien or otherwise, they agreed to transfer, in lieu of the bond or the proceeds thereof, (which the jury have found to be the same thing,) the note now in suit, as a collateral security for the original debt. The only question, therefore, is, are the plaintiffs innocent holders for value. As between the maker and payee, it is granted, there was no consideration, and the failure and absence of this would be a good defence to the maker. .But between other parties, as here between the plaintiffs and defendant,'two distinct considerations come in .question; first, that which the defendant received for his liability; and secondly, that which the plaintiffs gave for their title. If the defendant can show that he has an equity not to be charged, as if he can prove, as has been done here, that he received no consideration for his liability, or that his signature was obtained by force or fraud, he may, after giving due notice, require the plaintiff to show that he gave a valuable consideration for the note or bill, and that the plaintiff has no equity to recover. But actions between remote parties will not fail unless in case of absence or' failure of both these considerations. It is conceded here, that as between the maker and payee, there 'is no consideration whatever; that the plaintiffs are required to prove that they gave a valuable consideration for the note, and that if the note is held merely as a collateral security for a pre-existing debt, without more, it is not such a consideration as will prevent the defendant from availing himself of the equity as between the maker and payee. In Rosa v. Brotherton, (10 Wend. 85,) it is decided, that when the creditor receives the transfer of a negotiable note, in payment of a pre-existing debt, he takes it, although transferred to him before inaturity, subject to all existing equities between the original parties. But that case was not well considered, and has been subsequently overruled. But although this is so, it has been repeatedly held that a collateral security for a preexisting debt, without more, is not such a consideration as will give title to the holder; yet, if there is a new and distinct consideration, the holder is a purchaser for value, and, as such, protected from a defence which would have been available between the original parties. It seems to me there would be no great difficulty in proving that it would have been better not to' have restrained the negotiability of paper bona fide pledged as a collateral security for a debt; but on this point, the law is settled. Without making a parade of learning and research by the citation of numerous authorities, foreign and domestic, ancient and modern, it is sufficient to refer to Petrie v. Clark, (11 Serg. & Rawle, 377,) where both points are ruled. It is there, held that the transfer qf negotiable paper as collateral security for a pre-existing debt, does not constitute a person a holder for a valuable consideration. But where there is a new consideration, as‘ where it can be shown that time was given in consideration of obtaining the note as a security for the debt, it would be otherwise. The court, after stating the general principle adverted to, add, that it might be shown on the other side that the plaintiffs had a right to recover,.provided they were able to prove that time was given in consideration of obtaining the note as security for the debt, and that in bonsequence the debt was lost. The giving of time would be a present and a valuable consideration; and a pledge in these terms would be the same as a pledge for money paid down. Here the principle is plainly announced; for the case put is but an illustration of the principle, and applies with great force to the case in hand. Where the holder of a note or bill has not paid value for it, he is in privity with' the first holder, and will be affected by any thing that yvould affect the first holder. Collins v. Martin, (1 Bos, & Pul. 651.) But no evidence of want of consideration, or other ground, to impeach the apparent value received, was ever admitted in a case between an acceptor, a drawer, or maker, and the person hold- ■ ing the bill or note for value. There is no evidence that the plaintiffs were aware of the nature of the transaction between the maker and payee. There was a pre-existing debt between the plaintiffs and the payee, for which they'had a collateral security amply sufficient for their entire indemnity. One of the firm obtains possession of the bond for the particular purpose of reducing it into cash, and with the proceeds paying the amount due on the note. The money was raised by them, and instead of paying it over, as was the understanding, and their duty, in lieu thereof they assign to them the note now in suit. Now in what situation did Robinson and Smith, at the time of the transfer, stand to the plaintiffs l Clearly in the light of agents, with the money of the principals in their hands, recoverable by action of assumpsit for money had and received, and which might have been followed by them into 'any specific property into which they may have converted it. As for instance, -if they had purchased stock, it would have been subject to their claim. 3 Maulé § Selio. 562. The proceeds of the bond, to the amount of -the lien, were theirs, and there is no evidence — but the reverse may be inferred—that the parties intended to convert the transaction into a mere personal contract between them. And if this had been the effect, it is far from clear, that if the right to a special action in the case had been relinquished, it would not have been a valuable consideration. The consideration is every thing— the amount of it nothing, unless it is a colourable consideration. But be this as it may, the plaintiffs are holders for value. For what is this but an exchange of securities 1 and this, if it needed authority, has been ruled to be a sufficient consideration, in Hornblower v. Proud, (1 Barn & Ald. 333.) But it is said, it is the exchange of <one collateral security for another collateral security—and this is true; but may not the former have been of more value than the latter, as it undoubtedly was here, although that is an immaterial circumstance, so far as the legal point is involved. It is very plain, that had the plaintiffs retained their original security, they would have had no difficulty whatever. It has been produced solely by the exchange of securities. The same general rules which apply to the nature of the consideration for other simple contracts are applicable here. If a man give his acceptance to another, that will be a good consideration for a promise on another bill, though such acceptance is unpaid. And cross acceptances for mutual accommodation are respectively considerations for each other. Rose v. Sims, (1 Bar. & Ad. 521.) Cowles v. Dunlap, (7 T. R. 565.) Buckler v. Buttevant, (3 East, 72.) In Bosanquet v. Dudman, (1 Stark. 1,) it was held, that when a banker’s acceptances for his customer exceeded the cash balance in his hands, and accommodation acceptances were deposited by the customer with the banker, as collateral security, whenever the acceptances exceeded the cash balance, the banker held the collateral bills for value.. The reason that a negotiable note transferred as a collateral, does not constitute the holder a purchaser for value, is, that he is supposed, although very often contrary to the fact, to be in no worse situation than he was before. But that is not the ease where there is a new and distinct consideration superinduced by the transfer and exchange of securities. It is- not a past, but a present consideration.

The plaintiffs in error contend, that the judge erred, 1st, in charging the jury, that a parting with the possession of the bond, for the purpose of a sale of it, was no surrender of the property in it; and that the parting with the possession did not imply that the plaintiffs gave up their claim to it. Coupled with the evidence, we see no error in the charge; as it was the understanding of the parties, and the jury have so found, that it should be used for the special purpose of converting the bond into money, and paying the plaintiff’s debt. Quoad this amount they were the agents of the plaintiffs.

2d. In charging that if the defendant slept upon the knowledge that the plaintiffs held the note, and did not immediately give them notice that no value had been received for it, it was a circumstance for the consideration of the jury, in reference to his liability. The answer refers to the plaintiff’s ninth point; and it may be doubtfid whether, if there be error at all, it is not against the plaintiffs. It is conceded, that the plaintiffs were not aware of the want of consideration between the original parties; at least there is no proof of it: that they were resting under the conviction that there was no want of faith between them: that there was at least a moral obligation on the defendant, as soon as he was informed of the true state of the case, to take the earliest opportunity to apprise them of it, that they might secure themselves: .but instead of this, he seems •to rely on the promise of Robinson & Smith to indemnify him by payment of the plaintiff’s debt. There is nothing to complain of in this part of the charge, as it certainly was a circumstance which the jury might take into consideration.

But it is said that there is error, because the judge did not answer the defendant’s points at all: and that he misdirected the jury as to the law arising from the evidence. That the latter allegation is groundless, I have endeavoured to show; and as to the former, all the points to which the defendant was entitled to an affirmative answer, are noticed in the charge. But in addition, this case is in some respects peculiar; and we sincerely hope it will be the last of its kind. When the judge was about to deliver his charge to the jury, the defendant’s counsel handed to him a paper, containing five points to be charged on. The judge supposed that the general charge had covered all the ground taken in the argument; and from the opportunity afforded of examining the points, he was not aware that any thing in them had not been sufficiently noticed, tie desired, however, if the counsel for the defendant wished any more specific answer, that a designation would be made of the portions of the points which had not been embraced in the remarks already submit'ted to the jury.

The counsel for the defendants then referred to the fourth and fifth points. To this he answered, that no difference had been shown between the law of New York and the law of Pennsylvania; and therefore the point did not arise. In this the court was right; for no difference now exists in the law of the two states in this particular. The courts of New York have retraced their steps; and the law is the same there as here.

As to the fourth point, the judge said, that it appeared to be complicated of law and fact; and believing it to be answered by the general charge, so far as the defendant was entitled to have it answered, he had no further reply to give to it. The remarks already made show that the point was substantially answered; but there is another reason equally conclusive.

After stating his impression, that the point (certainly not so clearly expressed as to be understood in a minute) had been answered, the judge requested the counsel for the defendant to specify as to what particular the fourth point had not been answered; and the counsel not presenting any such specification, no further response was made by the court. To convict a judge of error, after evincing his desire in this manner to do justice to the parties, might lead to the practice of trick and artifice and concealment, and must be specially avoided; or otherwise the trial by jury would be a common nuisance. It is not intended to intimate that there was not duo fidelity to the court in this case; but we must presume that the counsel knew in what particular the judge failed or omitted to answer; and in common candor it was their duty, being appealed to, to point it out. If they choose not to do so, for motives best known to themselves, it is an error arising, in part at least, from their own omission; and cannot be a. ground for reversal. If any injury arises from it, it is a matter to be settled between the counsel and the client.

As to the question of the onus, which has been so much discussed in the argument, it was a proper subject of remark before the jury; and is pnly material here, as bearing, upon the facts found by the jury-

Judgment affirmed.