Buck v. Kent

• Decision Date: 01 January 1830
• Parties: BENJAMIN BUCK v. LUTHER M. KENT
• Court: Vermont Supreme Court

3 Vt. 99

BENJAMIN BUCK v. LUTHER M. KENT

Supreme Court of Vermont, Addison

January, 1830

Action of trover for two promissory notes executed by the plaintiff on the exchange of horses for the difference in the supposed value. One of the notes was made payable to a third person the other to the defendant. At the time of the exchange it was agreed by the parties that, if the defendant's horse should prove unsound, the contract was to be rescinded. The bargain was afterwards, by mutual consent, rescinded, and the defendant thereupon agreed to return the notes. The plaintiff subsequently made demand of the defendant for the notes, who refused to deliver them, and afterwards, for a valuable consideration, transferred the one payable to himself to another person, to whom the plaintiff paid the amount, and then brought the present action. At the trial in the county court, WILLIAMS, J. presiding, it appeared from the cross-examination of a witness, introduced by the plaintiff that the assignee of the note brought an action thereon, in the name of the payee, against Buck, the present plaintiff and that Buck appeared in that suit and defended; but a judgement was rendered against him. The defendant's counsel contended, that the plaintiff was concluded by the judgement, and could not recover in this action for that note. The plaintiff's counsel insisted that, as the records of the judgement referred to were not produced, there was no legal evidence of any such judgement. The court charged the jury, that if the defendant had refused to deliver the notes to the plaintiff when demanded, and had disposed of the note in his favor after demand made on him the plaintiff would not be concluded by a judgement rendered thereon, and might recover in this action for that note as well as the other. The defendant excepted to the charge of the court, and a bill of exceptions being allowed stating the foregoing facts, he removed the case to this Court, and prayed for a new trial.

Phelps, for the defendant.--It is admitted that a note against a third person may be the subject of controversy between two parties, and that the property may be determined in an action of trover. But it is doubted whether an action of trover will lie in any case to determine a question as to a promissory note between the maker and the payee. It would seem the only mode of determining the rights of the parties to a note is by suit on the note. If the note be considered a valid instrument, and in force, the property, as between the original parties, is undoubtedly in the payee. If it be considered legal evidence of a debt, and the debt itself a matter of controversy, the property in the instrument, as a piece of evidence, is unquestionably in the payee. If the note be considered as void, then it cannot be considered as property in any sense, nor as a proper subject for an action of trover. But the plaintiff in this case, in order to show a conversion of the note, introduced the evidence of the note's having been assigned, and a judgement having been rendered on it in the name of the defendant for the benefit of the assignee. It is very clear that the judgement is a bar to this suit. A judgement having been rendered against the present plaintiff on the note, it is not competent for him to overhaul the merits of the judgment by the action of trover. Further: It will be observed the jury found the full amount of the note in damages. This verdict cannot be justified except upon the ground that the note had been collected. Without that fact it was the duty of the court to direct the jury to find nominal damages.

It may be objected that the judgement was not properly proved. To this it is answered; --First: That when the plaintiff shows the fact by any evidence which is admitted without objection, although it may be objectionable, the defendant is entitled to the benefit of the fact. Secondly: The rule is the same when the fact is drawn out upon the cross examination, provided the fact is necessarily connected with the plaintiff's showing. Thus in this case, the plaintiff attempted to show conversion. The defendant is, of course, entitled to cross examine as to the mode and manner of that conversion. The plaintiff, in order to recover more than nominal damages, shows that he was compelled to pay the notes. The defendant may cross examine as to how he was compelled. In short, the fact of the judgement makes a part of the plaintiff's case, and having been proved in the course of the testimony, he cannot object that the record was not produced.

Bates and Chipman, for the plaintiff.--In order to render a judgement or verdict conclusive, it must be pleaded by way of estoppel. If not so pleaded, it is only evidence for the jury to weigh. But the case shows that the attention of the court was not called to it in this point of view, and there was no decision upon such a question. The judge was requested merely to instruct the jury that it was conclusive, and he charged them that it was not conclusive. 1 Stark Ev. 205--6, Metcalf's Ed. In order to give any effect to a judgement or verdict, it ought to appear explicitly, that the same subject matter was adjudicated upon. The question asked the witness in this case was general, whether he appeared and defended? not on what particular points he defended. But the very reason why trover can be maintained for such a note is because it may some time or other be sued when the signer will not be prepared with his defence. If it is required of him to be always ready with his testimony, so that he could resist the note, the note could have no value, and could not be the subject of an action. No precedent or authority applicable to this case is produced. It has no analogy to the cases of voluntary payments, or preadjudications upon the same right. The defendant had sold the note to a third person, and received a consideration for it. Can he complain or say he held the note rightfully because it has been paid to that person, or because that person has recovered a judgement? On the contrary, as the plaintiff had placed in his hands a note fairly importing an obligation to pay, and subject to a condition not appearing on the face of it, it was certainly a dictate of morality, and could produce no evil consequences, that he should pay it to the bona fide purchaser, and look to the defendant for a remedy.

Bates and Chipman, for plaintiff.

Phelps, for defendant.

OPINION

WILLIAMS, J.

The following questions are made in this case: 1st. Whether the plaintiff can maintain an action of trover for a note given by him to defendant under the circumstances detailed in this case? 2nd. Whether, upon the evidence of the judgement rendered on the note, the plaintiff was so far precluded by the judgement, that he could maintain no action against the defendant for the injury sustained?

The case states that this note was given to the defendant on the exchange of horses, but was to be returned to the plaintiff if he rescinded...