Dudgeon v. Haggart

• Decision Date: 07 October 1868
• Citation: 17 Mich. 273
• Court: Michigan Supreme Court
• Parties: John Dudgeon v. Allen Haggart

17 Mich. 273

John Dudgeon v. Allen Haggart

Supreme Court of Michigan

October 7, 1868

Heard July 11, 1868

Error to Kalamazoo circuit.

This was an action by plaintiff to recover a sum of money paid by him as surety upon a note.

The declaration contained a special count and the common counts.

The defendant pleaded the general issue, and gave notice of special matter.

A verdict was rendered for the defendant.

The facts are stated in the opinion.

Judgment reversed, with costs, and a new trial ordered.

Stuart Edwards & May, and H. F. Severens, for plaintiff in error:

1. Misapprehension of the court as to a material fact, and the direction to the jury accordingly, are said to be unmistakable grounds for a reversal of the judgment: 1 Bailey 482, 235; 1 Rep. Const. Ct., 200.

2. A receipt purporting to be a payment in full, together with a conditional assignment of a certain claim, was offered in evidence, and submitted by the court to the jury for their consideration. This was error. It was a matter of law, and for the court and not for the jury: 2 Ind. 617; 4 Id. 154 248; 2 Pars. on Cont., 4, and note b.

Where there are two instruments relating to the same transaction, they should be construed together: 4 Blackf. 341; 1 Ind. 267; 11 Id. 236; 13 Id. 496; Walk. Ch., 56, 206, 361; 1 Mich. 202, 421; 2 Doug. 16.

3. It was error to instruct the jury that as matter of law the parties intended the assignment as payment, and not as collateral security

These papers construed separately or together do not denote payment. They mean security for the sum of $ 269, and nothing more.

4. The giving and accepting of a smaller sum of money in payment or satisfaction of a larger one due, is not a valid discharge, and can not be pleaded either as payment or as an accord and satisfaction: 9 Johns. 332; 2 Id. 448; 27 Me. 370, 378; 20 Conn. 559; 2 Strobhart 203; 5 Gill. 218; 6 Cush. 150; 3 Barb. Ch. Rep., 621; 15 Ind. 371.

5. It is error to give contradictory instructions to a jury; also an uncertain charge: 12 Vt. 60; 1 Met. (Ky.), 83; 15 Gratt. 230.

a. As is implied in the language of the court, we requested the court to construe the writings, and to say that they imported security and not payment. Now, if we were in error in assuming that it was the business of the court to construe these writings, and it was a question for the jury, the court committed error in charging, as it did, that the language of the papers imported payment, and not security.

If, in response to a request which is erroneous, the court should charge erroneously upon that point, the party injured may well complain: 32 Ill. 281.

b. If the charge means anything, the jury were permitted to inspect and examine these writings to see if they imported full payment and satisfaction, and at the same time the jury was told that these writings meant payment and not security.

May & Buck, attorneys for defendant in error, furnished no brief.

OPINION

Graves J.:

Dudgeon sued Haggart, in the court below, to recover an amount paid by him as surety for Haggart, upon a note of $ 1,300, to Woodbury, Potter and Wood. The declaration embraced the common counts in assumpsit, and a special count containing the facts connected with the undertaking.

The damages were laid at $ 1,000. The general issue was pleaded, accompanied by a notice of set-off, and that the defendant would give in evidence on the trial under the issue, that on or about the 10th of May, 1865, the defendant, to secure the plaintiff the payment of $ 269, or that portion of it not therefore or otherwise paid or secured, did, in writing, sell and assign to the plaintiff the claim for $ 825, then held by defendant against the New York & Erie railroad company, and authorized the plaintiff to collect it, and out of the proceeds to pay himself whatever of the $ 269 remained unpaid, and required him to account for the balance; that on the 27th of September, 1865, the plaintiff settled, withdrew, and abandoned the claim against the company, and received from them, in full for said claim, $ 262.50.

It does not appear that upon the trial any question was made as to the original liability of Haggart, but it seems to have been contended, on the part of the latter, that such liability was subsequently extinguished, by what the defendant called a full settlement, on the 10th of May, 1865. It appears that the parties met together at that time for the purpose of effecting some adjustment of the business connected with the payment of the note by the plaintiff, and, that after some controversy, an arrangement was effected, which was reduced to writing in two parts--one being executed by Haggart, and the other by Dudgeon.

One Stafford, a witness called for the defendant, testified that he was present at the meeting of the parties on the 10th of May, 1865; that the plaintiff presented the note which had been given to Woodbury, Potter & Wood, and claimed that he had paid its face and some interest, and agreed that he would throw off $ 300 and the interest, leaving his due just $ 1,000; that the defendant paid the plaintiff $ 500 in money, and a note of William King's of $ 231, and gave the plaintiff an assignment of a claim for damages against the New York & Erie railroad company; that it was then and there agreed, between Dudgeon and Haggart, that the $ 500 in money, the King note, and the assignment, should be in full payment and satisfaction of Dudgeon's claim against Haggart; that Dudgeon agreed to give Haggart a receipt, and that the witness called at Dudgeon's office and received it.

The witness produced the receipt, and also identified the assignment, which was attested by him.

The counsel for the plaintiff admitted that the transaction between the parties, on the 10th of May, was correctly stated by the witness Stafford, except as to the reception of the cash, note, and assignment, in full payment and satisfaction.

The assignment and receipt referred to were submitted in evidence, and were as follows: "Whereas, I am indebted to John Dudgeon in the sum of $ 269, and which said sum I desire to pay, or secure to be paid; now, therefore, for the purpose of securing the portion of said claim not heretofore or otherwise paid or secured, I do hereby sell, assign, transfer, and set over unto said John Dudgeon, a claim, and the only claim, which I have and hold against the New York & Erie railroad company, for damages which occurred about the month of March, A. D. 1865, and resulting from injuries to cattle being transported over the road of said company, which said claim is for the sum of $ 875; and I do hereby, by virtue of this assignment, authorize the said John Dudgeon to collect the same in my name or otherwise, to pay himself from the proceeds whatever of his demand remains unpaid, and the balance collected the said Dudgeon is to account to me. A. Haggart. Dated May 10, 1865. In presence of Silas Stafford."

"I have this day received of Allen Haggart a certain sum of money, say $ 500, and a note against William King for $ 231, and also an assignment of his (Haggart's) interest to a claim against New York & Erie railroad, to secure me in the sum of $ 269, agreeable to said assigned instrument, which is in full of all claims and accounts against said Haggart, to date. John Dudgeon, Kal., May 10, 1865."

It distinctly appears, by the bill of exceptions, that no evidence was given tending to show that Dudgeon had obtained anything on the claim against the Erie railroad company, while he himself testified that he had received nothing upon it.

It is, therefore, manifest that the only subject open to controversy, on the trial, was the transaction of the 10th of May. If what occurred at that time was a complete settlement, or executed accord and satisfaction of the cause of action which accrued to Dudgeon upon his payment of the note, then there was no foundation for the suit.

If, however, that arrangement involved only the securing of the whole or of a portion of the plaintiff's demand, instead of the satisfaction of it, the action was, of course, maintainable for the sum remaining unsatisfied.

It is only necessary to examine two of the points presented in order to decide the case: One arises upon the refusal of the circuit judge to charge as requested, and the other is based upon a portion of the charge as actually given, and both may be considered together.

The instruction sought and refused was, "that, upon the facts proved, the plaintiff was entitled to a verdict," and the portion of the charge alluded to embraces the 15th 16th, and 17th paragraphs, reading as follows:...