Laird v. Campbell , 100 Pa. 159 ( 1882 )

Mr. Justice Turnkey

delivered the opinion of tne court May 22d 1882.

Laird was engaged in business in Philadelphia, and having become financially embarrassed, called a meeting of his creditors, when nearly all of them signed an agreement of composition. Afteiwards he sent this agreement to Young, in New York, with instructions to present it to his New York creditors for their signatures. Young presented it to Campbell, who signed it. There is testimony to show, and the verdict establishes, that immediately before the signing by Campbell, Young told him that Mairs & Co. would sign, and that it was perfectly understood, that unless all Laird’s creditors signed the agreement, it would not be binding. Mairs & Co. and other creditors did not sign, and some of these were paid in full: one who signed, did so upon the promise that he should receive fifty per centum of his claim, and he was paid accordingly.

A composition agreement between a debtor and a part of his creditors is valid, unless it appears that the agreement was contingent upon all the creditors, or a certain number, uniting therein, or the debtor has failed to comply with the terms of the composition. Therefore, the agreement between these parties, on its face, binds them: Laird v. Campbell, 92 Pa. St. 470. An agreement by a creditor to take less than his claim, upon condition that all the creditors become parties to it, is not a discharge of the debt, unless all do become parties: Greer v. Shriver, 53 Pa. St. 259. This case is not controlled by the consequences, as between Laird and those creditors who signed the agreement, either before or after Campbell’s signature. It matters not whether the agreement is valid or invalid with respect to the prior signers, or subsequent. The contest is between Laird and Campbell only, and depends entirely upon* the question whether Laird induced Campbell to enter into the agreement by a statement that it should not take effect till signed by all his creditors. It was competent for the parties to make such condition orally, and if they did, Laird lias no defence by virtue of the composition, for he testifies that all did not agree to it, and some were paid ip. full. A writing may be explained, varied or added to, by parol, where it is shown that but for the oral stipulations, the writing would not have been executed: Caley v. Railroad Co., 80 Pa. St. 363.

Young had no authority to make the representations; but the paper was entrusted to him with instructions to present it to the New York creditors for their signatures. The representation was in the course of the business of Iris agency, made to induce the creditor to sign, and the debtor cannot have the benefit of the agreement, except upon the condition which induced the making of it. Caley v. Railroad Co., supra; James v. Building Ass’n., 9 W. N. C. 325 ; Bennett v. Judson, 21 N. Y. 238; Crans v. Hunter, 28 N. Y. 389. The extent of Young’s authority is admitted by his principal, and the declarations were not offered to prove his authority. Naturally, the creditor would inquire respecting other creditors. The agent’s answer was as clearly within the scope of his employment, as the unauthorized warranty of the quality of goods by an agent for their sale. If the principal claims the benefit of the contract, or receives and holds the price, he must perform his part, of the bargain. The rule that “ where one of two innocent persons must suffer by the fault of a third, the loss must fall on him who reposed the confidence,” may have some application ; but if so, not.that urged by the plaintiff in error. Laird reposed the confidence, placed Young in position to deal with Campbell, and Campbell dealt with him just as ho would have dealt with Laird respecting the composition.

The objection to the question set forth in the third specification of error was on the ground of irrelevancy. If not admissible at the time it was asked, it became so when proof was made that Campbell was induced to become a party to the agreement by the statement that it would not be binding till all the creditors signed. It has often been ruled that if testimony, incompetent at the time of its admission, becomes competent at a later stage in the trial, its admission is not cause for reversal.

A party’s books, kept for the purpose of charging goods sold and delivered, in which the entries were made contemporaneous with the delivery of the goods, and by the person whose duty it was, for the time being, to make them, are admissible as evidence of the delivery of the goods therein charged : 1 Greenl. Ev. § 117. If the goods were charged before the contract of sale was complete, the book is not competent evidence. The entry must be made at the delivery of the goods, or immediately after; at or about the time when there is a transmutation of the property from the vendor to the vendee: Parker v. Donaldson, 2 W. & S. 9. The plaintiff’s open order-book was not evidence. When the order was entered therein no property in any specific goods had passed. The book containing the entries made at or about the time the goods were delivered, was evidence.

Judgment affirmed.