Cleaton v. Chambliss
| Decision Date | 27 November 1827 |
| Citation | 27 Va. 86 |
| Parties | Cleaton v. Chambliss. [*] |
| Court | Virginia Supreme Court |
This was an appeal from the Superior Court of Law for Greensville County, where John Chambliss brought an action of trespass on the case, against Thomas Cleaton, junior. The Declaration contains nine counts. The first three are common money counts. The remaining six are stated with sufficient minuteness in the opinion of Judge Carr, which follows. The subsequent proceedings will also be found in the same opinion.
Johnson for the Appellant, contended:
1. That the sustained counts in the Declaration are bad, because they do not allege that the bonds were not paid. The general averment at the conclusion of the Declaration is not sufficient.
2. The assumpsit is merged in the bond. Ashbrook v. Snape, Cro Eliz. 240; Com. Dig. tit. Action K. 2, 3, is a very short and loose note, and is opposed by 1 Com. Dig. 233, 240; Reade v. Johnson, Cro. Eliz. 242; Symncock v Payn, Ib. 786; Clerk v. Palady, Ib. 859; Cowp. Rep. Anonymous, 128; 1 Com. Dig. 321, 316.
3. The seventh and ninth counts are bad, because the Judgments set forth in those counts are conclusive, and a complete bar to this action. Chambliss had an election to bring assumpsit or debt; and he has made his election by bringing debt in the first instance, which was decided for the Defendant. 1 Com Dig. 228, 229. The parol agreement might have been given in evidence in an action on the bond. It would be a legal estoppel to the Defendant, to plead that the bond had been forged. Buckner v. Smith, 1 Wash. (VA) 296; Shep. Touchstone, 68; Ib. note 1, p. 79; 4 Com. Dig. 294, tit. Fait. F. 1; Woolley v. Constant, 4 Johns. Rep. 54; Penny v. Corwithe, 18 Johns. Rep. 499; Speake v. U. States, 9 Cranch, 28.
4. This was an agreement to pay the debt of a third person, and ought to be in writing.
5. The demurrer to the second plea ought to have been overruled. 1 Chitt. on Bills, 307.
6. The Judgment on the plea of nul tiel record is erroneous, on account of a variance between the Judgment recited in the declaration, and the Judgment itself.
The Attorney General, for the Appellee, said, that the variances between the Declaration and record, are unimportant. Cabell v. Vaughan, 1 Saund. 291; see Hall's Dig. tit. Variance. The second plea was clearly demurrable. It was not important whether the bonds had been altered before the promise or not, as proved by the case of Buckner v. Smith, and 1 Mass. 139.
The 6th and 8th counts of the Declaration, and the 7th and 9th counts, are not uncertain, in alleging whether the bonds were valid or not. It must be taken that they were valid, as the promise gave an assurance that they were so. Mackie v. DavisWash. (VA) 219; Com. on Contr. 208, 209; Meredith v. Short, Salk. 25-7Ld. Raym. 759, S. C.
As to the merger, see Calvin v. Cooke, Com. on Contr. 283; Noy's Rep. 83; Latch. 53. The case in Cowper says, that a man cannot sue upon a promise to pay a bond; but says, at the same time, that a promise by a third person is not extinguished. In a Bill of Exchange, the holder may sue each of the parties before him, and one right of action does not extinguish another. Com. on Contr. 204; Cotterel v. Hooke, Doug. 97; 1 Com. Dig. 224 to 249; Foster v. AllansonTerm Rep. 479; Com. Dig. 306, C.; Cro. Car. 314; 2 Term Rep. 483, note; 1 Caine's Rep. 47; Fenner v. MearesWm. Black. Rep. 1269; Harris v. Richards, Cro. Car. 272.
The passage in Buckner v. Smith, is a mere dictum; but if it is Law, it could not apply to this case, because here, the suit was brought in the name of the obligee, and not of the transfer. No form of pleading could allow such a defence. Cox v. PrenticeMau. & Selw. 344.
JUDGE CARR. JUDGE COALTER concurred on every point; and JUDGE CABELL concurred on the general ground presented by the seventh and ninth counts; but dissented as to the sixth and eighth counts, which he thought not good on demurrer. [*]
This is an action of trespass on the case, founded on the alleged promise of the Defendant to pay the amount of two bonds, which the Defendant and another had executed to one Wessen, and of which the Plaintiff had been induced by the said promise, to take of Wessen a verbal transfer. The Declaration sets out the case in nine counts; the first three, money counts; the others, founded on the special promises and assurances of the Defendant. To all the special counts, there is a special demurrer, assigning ten causes of demurrer. The Court sustained the demurrer as to the 4th and 5th counts, and overruled it as to the others. The Defendant also pleaded six pleas. First Non Assumpsit, on which issues was joined. Then four special pleas to the special counts; and last, Nul Tiel Record to the 9th count.
To the second plea, the Plaintiff demurred, and the Court sustained the demurrer. To the third plea, he replied specially, the Defendant demurred, and the Court overruled the demurrer. To the fourth plea, the Plaintiff replied specially. The Defendant rejoined specially. The Plaintiff demurred, and the demurrer was sustained. The issue joined on the plea of Nul Tiel Record was found by the Court for the Plaintiff, to which the Defendant filed exceptions, making the record a part of his bill. The Defendant also filed exceptions to the opinion of the Court, refusing certain instructions asked, and giving others not asked for.
This brief outline fully supports the assertion of Counsel, that there has been much ink shed in this case, fairly attributable to the rage for special pleading, which seems to have possessed the parties in the Court below; for the merits, as it seems to me, lie within a narrow compass, and might have been presented by short and simple pleadings.
The argument here, was chiefly on the demurrer to the four last counts. These counts, I consider all good, and to be supported by the same reasoning. I will, therefore, confine my examination to one of them; and will take the ninth, as it seems to present most exactly the real case between the parties.
The case made by this count is substantially as follows: that Wessen was indebted to the Plaintiff, and being possessed of two single bills, purporting to have been executed by the Defendant and Thos. Cleaton, senr. his surety, for the sum of $ 440 each, proposed to transfer them to the Plaintiff, in payment of the sum due him, and a further sum to be paid to the said Wessen by the Plaintiff: that in a conversation between the Plaintiff and the Defendant, concerning the debt due the Plaintiff from Wessen, and concerning the said single bills, the Defendant promised the Plaintiff, that if he would take the single bills from Wessen, he the Defendant would pay him the sums of money specified in the same, when they should become due: that the Plaintiff, confiding in this promise, did take a transfer (without written assignment) of the said single bills in payment of the money that Wessen owed him, and paid him the excess: that the Plaintiff afterwards brought suits in the name of Wessen (but for his own benefit) on the said single bills, against the Defendant: that the Defendant pleaded to each non est factum; and issues being joined on the said pleas, such proceedings were had, that in each case a Jury found the issue for the Defendant, and Judgments were rendered by the Court in his favor; as, by the records, & c., more fully appears; and the Plaintiff saith, that the single bills which were the subjects of the said verdicts and Judgments, were the same which the Plaintiff had previously shown to the Defendant, and which he had promised to pay, if the Plaintiff would take a transfer of them, and further, that they had not been in any manner altered from the time of the said promise, till the rendition of the said Judgments, whereby the Defendant became bound and liable to the said Plaintiff to pay, & c., with the usual conclusion. The demurrer admits all these facts to be true; and the question is, are they sufficient in Law to support the action?
The general rule is, that " any damage, or any suspension or forbearance of his right, or any possibility of a loss, occasioned to the Plaintiff by the promise of another, is a sufficient consideration for such promise, and will make it binding, although no actual benefit accrues to the party undertaking." 3 Burr 1673; 3 Term. R. 24; 2 H. Bl. 312; 1 Wms. Saund. 211, b.; 2 Wms. Saund. 136. There can be no doubt, that the promise here comes within the rule; and indeed, I understood this to be admitted at the bar.
But, it was insisted, that the count was demurrable, because (setting out the records of the Judgments on the bonds) it showed on its face, that the promise to pay them might (if available at all) have availed the party in those actions; and therefore, could not be the foundation of a separate and distinct action. The examination which I have been able to give this subject, leads me to a different conclusion, both as to the position taken, and the consequence derived from it. I do not think, that in the actions on the bonds, the promise of Cleaton to pay them to Chambliss could have been resorted to; nor if it could, does it seem to me, as at present advised, a necessary conclusion, that therefore the promise would support no separate action. It was contended, that in actions on the bonds, the promise might be resorted to in two ways: 1st, by way of replication to the plea of non est factum: 2, by way of evidence to rebut the plea of non est factum, if issue was taken on that plea.
As to the first, a little attention to the form and nature of the plea of non est factum, will show, I think, that no such replication could have been taken to it. Every plea, which amounts to a negation of the existence of the cause of action...
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