Giddings v. Seevers

• Decision Date: 18 December 1865
• Citation: Giddings v. Seevers, 24 Md. 363 (Md. 1865)
• Parties: JAMES GIDDINGS v. WILLIAM R. SEEVERS and Augustus F. Seevers.
• Court: Maryland Court of Appeals

24 Md. 363

JAMES GIDDINGS v. WILLIAM R. SEEVERS and Augustus F. Seevers.

Court of Appeals of Maryland.

December 18, 1865

Appeal from the Superior Court of Baltimore City:

This was an action of assumpsit, instituted by consent in the Superior Court of Baltimore City, to determine the respective claims of the appellant and appellees to a sum of money, the proceeds of two policies of insurance, effected on property which was consumed by fire.

Exception.--At the trial of the cause, after the facts stated in the opinion of this court, had been given in evidence to the jury, the plaintiffs offered the three following prayers:

Plaintiff's First Prayer.--If the jury shall find from the evidence that Ira Stanbrough, John R. Holliday, and Mark A. Duke were partners, carrying on the Valley Factory at Harper's Ferry, Virginia, under the firm of Stanbrough Holliday & Co., on the 20th of January, 1852, and that they did on that day effect the insurances for one year on the movable machinery in said mill, of one thousand dollars each, testified to by the witness, Robert M. Proud, and that the property insured was destroyed by fire on the 19th of November, 1852, and immediately thereafter the interest of the said firm under the insurances aforesaid was assigned by the orders offered in evidence to the plaintiffs to secure the payment of the notes of $282, and $1,253.94 respectively, that have been offered in evidence, and that said notes were given by the said firm in the course of its business, and that notice of such assignment was forthwith given to the insurers, then the verdict must be for the plaintiffs under the agreement in this cause, even though the jury should believe that there had been a prior partnership between the said Ira Stanbrough and John R. Holliday, under the firm of Stanbrough & Holliday, by which a deed of trust had been executed to William F. Daugherty on the 21st of March, 1851, to secure the indebtedness to the defendant therein mentioned, and providing for the insurance to the amount thereof, of the property therein described, and stipulating that in default in the insurance of the said property, the said Daugherty should execute the trust under said deed according to the laws of Virginia, in such case made and provided, and which insurance had been effected under the policy for $5,000, offered in evidence, which expired on the 13th of October 1852, and was renewed by the said Daugherty or the defendant; --and even though the jury should believe that at the 2d of December, 1852, the said firm of Stanbrough, Holliday & Company assigned its interest under said insurances of $1,000 each, (of which assignment notice was given to the insurers on the 18th of January, 1853,) to secure the indebtedness mentioned in the deed of trust aforesaid, and even though the jury shall believe that the said Mark A. Duke asserted to the assumption by the firm of Stanbrough, Holliday & Company, of the indebtedness to the firm of Stanbrough & Holliday to the defendant.

Plaintiff's Second Prayer.--That if the jury believe from the evidence that Stanbrough & Holliday were partners as set forth in the plaintiffs' first prayer, and that Mark A. Duke subsequently became a partner with them under the new firm of Stanbrough, Holliday & Company, in carrying on the same business as the old firm, and that articles of co-partnership in writing were entered into between the members of the new firm as testified by the witness, John R. Holliday, on or about the 1st of January, 1852, and that the subject of the assumption of the liabilities to the defendant of the old by the new firm, was spoken of among the members of the latter, at and before the execution of said articles, then in the absence of anything in said articles on the subject of such assumption, oral testimony is inadmissible to prove the same to have been one of the considerations of the new partnership.

Plaintiffs' Third Prayer.--That if the jury should believe from the evidence that such assumption was in fact agreed upon after the formation of the partnership, it cannot prejudice the plaintiffs in the absence, should the jury find such absence, of any consideration to be proved to and found by the jury moving from defendants to the said new firm. And that the payment of any of the notes due to said defendant and mentioned in the plaintiffs' first prayer, were with the assent of Mark A. Duke, is not sufficient to create a binding obligation on the new firm to pay the whole or any of said notes remaining unpaid.

And the defendant prayed the court to instruct the jury as follows:

Defendant's First Prayer.--If the jury shall find from the evidence that James Giddings, the defendant, was the owner of the cotton machinery referred to in the evidence, and that he sold and delivered the same to Stanbrough & Holliday upon a credit, and that in order to secure the payment of the purchase money, they executed to William F. Daugherty, the deed of trust, dated 31st of March, 1851, offered in evidence by the defendant, and that they afterwards took into business with them Mark A. Duke, and transacted their business under the firm of Stanbrough, Holliday & Company, and that said firm agreed among themselves with the knowledge and assent of the defendant, Giddings, that they would take the said cotton machinery subject to its liabilities to Giddings, under said deed of trust, and would pay the debt therefor to the said Giddings, and did in fact pay part thereof, and that the said Stanbrough, Holliday & Company did then insure the said property which was afterwards, to wit: on the 19th of November, 1851, destroyed by fire, and the insurance companies made liable therefor, then by the true construction of the said deed of trust, and the facts so found by them as above, the defendant Giddings is entitled to said insurance money, and under the agreement in this cause their verdict must be for him notwithstanding they may also find that subsequent to said loss by fire, the said Stanbrough, Holliday & Co. executed and delivered to the plaintiffs the papers offered in evidence by the plaintiffs, designated as assignments Nos. 1, 2 and 3.

Defendant's Second Prayer.--If the jury shall find the facts stated in the defendant's first prayer, and shall also find that on the second day of December, 1851, the firm of Stanbrough, Holliday & Co. executed and delivered to William F. Daugherty, the assignment offered in evidence by the defendant, which was certified to said insurance company on the 19th of January, 1853, then the plaintiffs are not entitled to recover.

Whereupon the court (Lee, J.,) granted the plaintiffs' prayers, and refused to grant the defendant's prayers, to which granting of the plaintiffs' prayers and refusal to grant the defendant's prayers, the defendant excepted, and the verdict and judgment being for the plaintiffs, appealed.

The cause was argued before BOWIE, C. J., and BARTOL, GOLDSBOROUGH and WEISEL, JJ. George W. Dobbin and George L. Dobbin, for the appellant:

The appellant, the defendant below, now maintains that by the true construction of the deed of trust from Stanbrough & Holliday, to Daugherty, the insurance to be made by the former was for the benefit of Giddings, the appellant, and gave to him a lien on the proceeds of the insurance; and that when Duke was introduced into the firm with knowledge of this obligation to insure for the benefit of Giddings, he became as much bound to the duty of insuring, and the proceeds of such insurance as much subject to Giddings' lien, as in the case of the firm of Stanbrough & Holliday.

That it was not within the competency of either the old firm, or the new, to assign the proceeds of insurance to any general creditors of the old or the new firm, to the prejudice of Giddings' lien, who was a particular creditor, having a lien upon the fund.

In support of these propositions, reliance will be placed on the case of Thomas v. Von Kapff, 6 G. & J. 372, which it will be contended decides all the principles involved in this case.

That Seevers was not a purchaser for a valuable consideration. See Harwood v. Jones, 10 G. & J. 410, and Thomas v. Von Kapff, 6 G. & J. 378.

John H. B. Latrobe and J. J. Snyder, for the appellees:

The articles of co-partnership of the new firm make no mention whatever of any antecedent firm, or any of its liabilities or obligations. On such proof as this, the trustee of the old firm could have no claim, legal or equitable, to the insurance of the new firm. Hence the introduction of Mr Holliday's testimony is fairly questionable on several grounds:

1. If there was the prior consultation and explanations with Duke, of which the witness speaks, the written agreement subsequently entered into, must be taken as the ultimate conclusion of the parties, to the exclusion of all that may have gone before which is not mentioned in it.

2. If the agreement, the articles of co-partnership, was entered into first, and the consultations and explanations took place afterwards, they are clearly incompetent to vary one tittle what the parties have expressed in writing.

3. If not relied on to enlarge or construe the articles of copartnership, but as independent undertakings on the part of Duke, there is no evidence of any consideration to sustain them.

4. They are, however, not even relied on by Ira Stanbrough and John R. Holliday themselves, who, in their assignment of the insurance money of the 2d December, 1852, put the claim of Giddings, not on the undertakings of Duke, manifested by his interviews with Holliday, but upon their " belief that the said Giddings is entitled to the same by reason of the said deed of trust," to wit: the deed of trust of the old firm, of March 31st, 1851.

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