Brewster v. Frazier

• Decision Date: 09 March 1870
• Citation: 32 Md. 302
• Parties: C. R. BREWSTER and L. W. SPRATT v. JOHN J. FRAZIER.
• Court: Maryland Court of Appeals

32 Md. 302

C. R. BREWSTER and L. W. SPRATT v. JOHN J. FRAZIER.

Court of Appeals of Maryland

March 9, 1870

APPEAL from Baltimore City Court.

The facts of this case are sufficiently presented in the opinion of the Court.

Exception: The plaintiffs prayed the Court to instruct the jury as follows:

1st. That if the jury believe that the defendant, on the 3d of December, 1866, executed and delivered his promissory note to the plaintiffs, payable on the 25th of December, 1866, and at the same time delivered to the plaintiffs, as his attorneys a certain bond and mortgage of J. Guerard Heyward, which they agreed to collect, and out of the proceeds, first, to reimburse themselves, for money advanced the defendant; and that from the nature of the case, the plaintiffs could not collect the amounts due on the said bond and mortgage before the maturity of the note, that then the plaintiffs are entitled to recover the amount of the note, with interest at seven per cent. per annum from maturity thereof.

2d. That if the jury believe from the evidence that the defendant executed and delivered to the plaintiffs the promissory note in suit, and at the same time, delivered to them, as his attorneys, a certain bond and mortgage of J. Guerard Heyward for collection, as securities, for money advanced on the said note, and that the plaintiffs have not realized on the said bond and mortgage; that then the plaintiffs are entitled to recover (without first exhausting the securities) the amount of the note, and interest thereon from its maturity, at seven per cent. per annum.

The Court, (SCOTT, J.,) rejected these prayers, and instructed the jury "that there was an entire contract between the defendant and the plaintiffs, and as it did not appear that the latter had made an effort to realize on the bond and mortgage, there was no evidence on which they could recover."

To the refusal of their prayers, and the instruction given by the Court, the plaintiffs excepted, and the verdict and judgment being against them, they appealed.

The cause was argued before BARTOL, C.J., STEWART, BRENT, GRASON MILLER and ROBINSON, J.

J.

D. Ferguson and John A. Inglis, for the appellants.

The promissory note, the cause of action in this case, is a distinct and independent contract, complete within itself, pledging the personal responsibility of the defendant for the payment of the money named therein; and is not merely one part of an entire contract, of which the power of attorney and receipt of the same date constitute the residue, and the instruction given by the Court was erroneous in this respect. Chitty on Contracts, 94; Mann vs. Witbeck, 17 Barb., 388; 2 Parsons on Contracts, 503.

The bond and mortgage, and contract mentioned in the receipt, were lodged by the defendant with the plaintiffs, as his attorneys, for collection, and the authority conferred in the power of attorney, and reserved in the receipt, to apply the first moneys realized from such collection in payment of the sum then lent and advanced by the plaintiffs, only gave them a lien on this specific property of the defendant in their hands, as an independent security, additional and collateral to the pledge of personal responsibility made by the promissory note, and did not impair or affect the right of the plaintiffs to pursue and enforce that personal responsibility, so long as it did not appear in evidence that they had, in fact, been paid from the specific security, and the plaintiffs' first prayer should, therefore, have been granted. So. Sea Co. vs. Duncomb, 2 Strange, 919; Lawton vs. Newland, 2 Starkie, 72; Emes vs. Widdowson, 4 C. & P., 151; Elder vs. Rouse, 15 Wendell, 218; Granite Bank vs. Richardson, 7 Metc., 407; Bank of England vs. Glover, 2 L. Raymond, 753; Lingan vs. Henderson, 1 Bland, 282; Andrews vs. Scotton, 2 Bland, 665; Wilhelm vs. Lee, 2 Md. Ch. Dec., 322; Brown vs. Stewart, 1 Md. Ch. Dec. 92.

The deposit of the bond and mortgage and contract, with power of collection and application, even if made for the particular purpose of giving the plaintiffs the specific security of this property for the re-payment of the money advanced, only constitute a lien, as an independent security additional and collateral to the personal responsibility pledged in the promissory note, and did not limit, impair or affect the right of the plaintiffs to pursue and enforce that responsibility, so long as payment had not, in fact, been obtained from the specific security, and the plaintiffs' second prayer should have been granted. 3 Parsons on Contracts, 372; Chitty on Contracts, 658; Story on Bailments, sec. 315.

If the promissory note sued on, the power of attorney and the receipt, constituted together one entire contract, and the sum advanced by the plaintiffs was an anticipated payment of the proceeds of collections to be made, the circumstances as appearing in evidence relieved the plaintiffs of any obligation to make "an effort to realize on the bond and mortgage" by legal proceedings, before resorting to the defendant's personal responsibility, inasmuch as they evince that any such legal proceedings would have been unavailing, and there was evidence to go to the jury of the diligence of the plaintiffs, otherwise than by legal proceedings, and the instruction of the Court in this respect was erroneous. Beckwith vs. Sibley, 11 Pick., 482; Upham vs. Lefavour, 11 Metc., 174; Frothingham vs. Everton, 12 N. H., 239.

John S. Tyson, for the appellee.

There was an entire contract between the defendant and the plaintiffs; and the Court below, if in error at all in its instructions to the jury, erred in basing those instructions on the absence of proof of an effort on the part of the plaintiffs to realize on the bond and mortgage. For, the payment of the $300.00 was not dependent on an effort to collect the mortgage claim, but on success in collecting it, at least to the amount of $300.00. In other words, if there was an entire contract, and the mode of payment prescribed in the contract has failed, then there is no other method of obtaining payment. For, the defendant had a right to require, as he did require of the plaintiffs, an advance of $300.00, as a security to him for the faithful discharge of the duties assumed by them, presuming that, as they could not be repaid until they had collected at least $300.00 of his claim, they would use due diligence in collecting it.

There are several objections to the plaintiffs' prayers. Both prayers ask for interest at seven...