Brimhall v. Van Campen

• Decision Date: 01 January 1863
• Citation: Brimhall v. Van Campen, 8 Minn. 1 (Minn. 1863)
• Parties: WILLIAM E. BRIMHALL vs. BENJAMIN VAN CAMPEN.
• Court: Minnesota Supreme Court

Page 1

8 Minn. 1

WILLIAM E. BRIMHALL vs. BENJAMIN VAN CAMPEN.

Supreme Court of Minnesota.

Appeal from judgment of district court, Ramsey County.

Action on a promissory note executed in New York

on a Sunday, to which was pleaded a counter claim against the payee, on his subscription for three hundred dollars, to a paper signed by him and others, as follows: "We the subscribers, agree to pay to the road supervisor of Cannon Falls, the several sums set opposite to our names, for the purpose of building a good suspension bridge over the Cannon River, on Bridge Street, where the Henderson and Red Wing territorial road crosses said river. Said several sums to be paid on demand. Such a bridge as was contemplated by the subscribers was not built. Plaintiff had judgment below.

Points and authorities for appellant: —

1. Joseph Daniels was not a party to the bridge contract. This contract was between the proper authorities of Goodhue County, of the one part, and Scranton and his assignees, of the other.

2. Daniels and others signing the subscription paper, by the act of their subscription constituted the authorities of Goodhue County, their trustees for the disbursement of the moneys subscribed, for the discharge of which trust the contractor was in no way or manner responsible.

3. By signing the subscription paper, on the faith and credit of which others subscribed and the enterprise was undertaken, Daniels became indebted thereon in the sum of $300. 1 Parsons Cont. 377, and note (o), and cases cited; id. 378, and notes, and cases cited; 12 Mass. 190; 4 N. H. 533; 6 N. H. 164; 20 Johns. 89; 9 Barb. 202; 7 Johns. 112; 1 N. Y. 581; 5 Pick. 228; 14 Mass. 172; 6 Pick. 433; 2 Vt. 48; 9 Vt. 289; 5 Pick. 507.

4. The indebtedness so raised was in its nature transferable, like any chose in action, and before any equity or defense had arisen against it in the hands of the assignor, the same was actually transferred to the appellant, who became as lawfully entitled to recover the money of Daniels, as he would to hold and retain the money; had the same been in the first instance paid over to the county authorities and by them turned over to Van Campen.

5. In June, A. D. 1858, the contractor and assignee of this chose in action demanded payment of Daniels. There was no failure to erect the suspension bridge, until October ensuing, four months afterwards. At the time of this demand, Daniels' liability on the subscription was perfect and the withholding of payment was a wrong, for the money was payable on demand, and not on the completion of the work.

6. The erection of a pier bridge in lieu of a suspension bridge does not in the slightest degree relieve Daniels from his subscription contract. The case does not show this change in the plan of the bridge was a change in any material respect, or in any way lessened the value of the structure to any subscriber. That other subscribers did not so regard it, appears from the fact that they also paid their subscription.

7. The note in question was made on Sunday, in the State of New York. Such a contract made in this state could not be enforced. Public Stat. 730; Watts v. Van Ness, 1 Hill, 76. Hilton v. Houghton, 35 Me. 143; Nason v. Dinsmore, 34 Me. 391. The laws of New York on this subject, not having been proved on the trial, are presumed to be the same as our own. Cooper & Lavely v. Reaney, 4 Minn. [528]. So the validity of this contract must depend on our laws.

Points and authorities for respondent: —

1. The first point in this case to be considered by the court is, whether the promissory note in question is a New York or a Minnesota contract. The referee finds it was made on Sunday, in the State of New York. The validity of the contract depends upon the laws of the state where it had its first inception. Story Prom. Notes, § 155, and cases therein cited. A promissory note made in New York on Sunday is good. 2 N. Y. Rev. Stat. 83; 13 Wend. 429; 8 Conn. 27; 12 Wend. 57; 1 Hill, 76; 2 Sandf. 318. Second, even though the note was a Minnesota contract, still it would be valid under our statute. Comp. Stat. 730.

2. The subscription paper or contract was without any legal consideration, and void. Academy v. Davis, 11 Mass. 113; 14 Mass. 172; 2 Pick. 578; 5 Pick. 507; 6 Pick. 427; 1 N. Y. 581; same case, 2 Denio, 420.

3. Under the pleadings in this action, a substantial completion of a good suspension bridge is a condition precedent to entitle the appellant to recover the subscription money.

4. The fact that the subscription paper called for a good suspension bridge is a sufficient answer to the first, second and third points of the appellant.

5. The appellant had no authority as road supervisor to assign the amount subscribed in payment for the construction of said bridge, without the consent of all the subscribers.

6. The referee finds that Scranton took the money subscribed in payment for the building of said bridge, but does not find that the same was ever by said Scranton assigned to the appellant.

7. The written assignment found by the referee is wholly silent as to the subscription money.

8. The facts found by the referee leave this matter precisely as though there had never been any attempt to construct this bridge, and the whole enterprise had been abandoned in 1858.

9. The facts found by the referee show conclusively that there never was even an attempt on the part of the appellant, in good faith, to construct a bridge in accordance with the terms of said subscription.

10. It would be an outrage upon common justice to say that Daniels should be held liable to pay this subscription upon the state of facts found by the referee.

Geo. L. & E. A. Otis, for appellant.

Daniels & Grant, for respondent.

FLANDRAU, J.

The referee finds, as a matter of fact, that the note upon which this action is founded was made in the State of New York, and that it was executed on Sunday. He does not find, as a further fact, what the law of New York upon the subject of contracts executed upon the Lord's Day is, or whether it in any way differs from our own. The statute and common law of our sister states are facts to be proved, as any other facts in a cause, by the party who seeks to take advantage of any difference that...