Gilpin v. Howell

• Decision Date: 03 April 1846
• Citation: 5 Pa. 41
• Parties: GILPIN et al. <I>v.</I> HOWELL.
• Court: Pennsylvania Supreme Court

5 Pa. 41

GILPIN et al. v. HOWELL.

Supreme Court of Pennsylvania.

March 3, 4, and 9, 1846.

April 3, 1846.

March 3, 4, and 9.

IN error from the District Court of Philadelphia.

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C. Gilpin, for plaintiff in error.—Without the testimony of Howell, the plaintiff had no standing in court. Is he competent, after the documentary evidence showing a purchase by him, and his own admissions that he had not communicated the fact of the agency, to withdraw himself from the position of principal and become a witness on his unsupported allegation of agency for the plaintiff? The letter announcing the purchase for him was acquiesced in, and the note of counsel first applied to in the cause shows that the present plaintiff was unknown to the defendants, or to any one else, as a party. All this was proved by the plaintiff, and shows a written statement of the relation of the parties which cannot be altered by parol. Story on Agency, sects. 266, 267, 160, 288, 270; Jones v. Littledale, 6 Adol. & El. 486; Patterson v. Gaudasequi, 15 East. 62; Addison v. Gaudesequi, 4 Taunt. 574 So the principal could not sue on such a written contract. U. S. v. Parmele, 1 Paine C. C. R. 252. [Per Curiam. — There was no evidence there of a contract as agent.] It appears from the relation of the parties — the contractor being the marshal. Ripley v. Thompson, 12 Moore, 55, (22 E. C. L. R.) In Clark v. Wilson, 3 Wash. C. C. R. 560, where a charter-party was executed by one in his own name, it was held the principal could not sue. Here the defendants were bound to deliver to Dr. Howell, and that right was a chose in action to support which he was incompetent as a witness, under Clover v. Painter, 2 Barr, 46; Smythe v. Craig, Ib. 153; and the numerous cases of the same character in this court. The grounds of this action are the same as would have been used as a defence to an action on the note, where this witness would have been incompetent. Steinmetz v. Currey, 1 Dall. 234; Zeigler v. Gray, 12 Serg. & Rawle, 42; Cropper v. Nelson, 3 Wash. C. C. R. 125; Griffith v. Reford, 1 Rawle, 196; Rhodes v. Lent, 3 Watts, 364; Bank v. Walker, 9 Serg. & Rawle, 229; Smith v. Thorne, 9 Watts, 144; Greenl. Ev. sect. 417; Bickerton v. Burrell, 5 Maule & Sel. 383. The evidence was also inadmissible under the bill of particulars. Babcock v. Thompson, 3 Pick. 446; 2 Saund. Pl. & Ev. 699; 2 Bos. & Pul. 243. The party cannot purge himself at the trial after the rule to produce is made absolute. [BURNSIDE, J. — The practice is universal.] McNair v. Wilkins, 3 Whart. 551; Tuttle v. Mechanics' Loan, 6 Ib. 216; Dunham v. Riley, 4 Wash. C. C. R. 126; United States v. 28 Packages, Gilp. 306; 13 Serg. & Rawle, 447. The evidence of Harris was not to prove a custom contrary to the common law, but to rebut the presumption of mixture. Of this there was no evidence: no demand was ever made. The mere fact of mixture, if the pledgee always retains as much of the same kind as the thing pledged, is sufficient; nor need the identical thing be retained. Nourse v. Prime, 4 Johns. Chan. Rep. 490, 7 Ib. 69, where a precisely similar case occurred.

Bleight, contrà.—It is a familiar principle, that a pledgee parting with the pledge loses his lien; and here there was no evidence of a retention of any stock, even of the same character, much less the identical stock pledged. No interest has been shown in Howell. In 6 Whart. 216, the party was permitted to purge himself at the trial, and a disinterested witness is preferable; besides, the plaintiff read his press-copy of the letter. The bill of particulars need only set forth the items of demand, which was done here with great exactness. The main point is the effect of mingling the stock pledged with the pledgee's own property. Allen v. Dykers, 3 Hill, 593, affirmed in the court of errors, is against the cases cited.

Rawle.—In this case there has been no transfer, or offer to transfer the stock to the plaintiff, or any account furnished of the proceeds. That an agent is competent to prove his agency and his own acts, is settled, 1 Greenl. Ev., sects. 416, 417; 2 Ib. sect. 63; McGunnagle v. Thornton, 10 Serg. & Rawle, 251; McDowell v. Simpson, 3 Watts, 135. How is he liable? Can the verdict and judgment, either way, in this case, be evidence for or against him? The offer was to show a custom to transfer contrary to the charter of the bank. As to the charge: If the money was applied to a note without consideration, clearly the plaintiff could recover. The reasoning of the judge is the best argument. He refers to the case of an agent receiving a new note to himself, in lieu of one to his principal — the case of stock which has risen in value, and the pledgee has become insolvent, when the pledgor necessarily becomes a mere creditor. It is the necessity of protecting parties from the frauds of their agents that is the foundation of this rule. These principles are supported by authority. Story on Bail., sects. 309, 310, 318, 321, 322, 339, 343; Garlick v. James, 12 Johns. 146; Hurd v. West, 7 Cow. 752. In Nourse v. Prime, there was explicit evidence of the retention of as much stock of the same character. Hampton v. Speckenagle, 9 Serg. & Rawle, 212.

Meredith, in reply.—There are three matters to be considered — the law of procedure, the evidence, and the contracts. The plaintiff was a surety until converted into a principal by the evidence of Howell, who drew the notes, purchased the stock, and borrowed the money. The bill of particulars was false in one item; for the mechanic's stock we had a receipt, and of course came to the trial prepared to prove merely that the money claimed was received on a valid note, given for property purchased for the maker. That the consideration had failed, by some supposed transactions subsequently, was not stated, nor could the parties be prepared to rebut presumptions of matters resting in imagination only. If there had been a special count, of which the bill takes the place, would not a plea averring the application to the note be a bar? The question of the paper is important. The party submitted to the order; and the proof is not of a loss since the order: nor was the party herself, nor the counsel who at one time had the paper, examined. We did not wish to show a custom contrary to the charter, but consonant; merely that not more than one certificate was given, when a number of shares were transferred on the same day. The witness, being apparently a principal, cannot remove the objection by his own testimony. Griffith v. Reford, 1 Rawle, 196. The rule that a party to a note cannot impeach it is settled: if so, it is certainly immaterial that the note is delivered up, and the suit is to recover the funds applied in payment. There has been no claim of a right to sell but under the contract; nor was there any testimony that they had not kept the stock. It is shown that it was at the parties' own request that the stock was held by defendants as their own, so that the names of others might not be known; and this alone is a sufficient answer to the objection of mixture. But can this action be maintained? The note was for the purchase of stock, which was purchased: hence, there was a consideration which could not be taken away. Any subsequent matters might be the subject of an action or set-off, but could not possibly impair the past consideration on which the money was received, with the assent of all parties.

April 3. BELL, J.

The first error assigned presents for consideration the several bills of exception, taken upon the trial, to the decision of the court below, admitting E. Y. Howell as a competent witness for the plaintiff. If the transaction from which this litigation springs, be as it was stated by this witness, then, unquestionably, Clarissa J. Howell, the plaintiff below, had a right to bring suit in her own name. Though there are cases in which it has been held that, generally speaking, a principal may not sue upon a written contract made by an agent in his own name, though the agency be disclosed, (Story on Agency, sec. 160; United States v. Parmele, 1 Paine, C. C. R. 252,) yet the general rule is, that in cases of parol contracts the right of action may be asserted by him from whom the consideration proceeds, and certain it is, that where an agent enters into a verbal contract, even without disclosing his principal, the latter may maintain an action upon it. Duke of Norfolk v. Worthy, 1 Campb. N. P. 337; Wilson v. Hart, 7 Taunt. 295; Bickerton v. Burrell, 5 Maule & Sel. 383; Vischer v. Yeates 11 Johns. 23; McGunnagle v. Thornton, 10 Serg. & Rawle, 251. As is observed by Mr. Justice Bayley in Sargent v. Morris, 3 B. & A. 281, you may bring your action either in the name of the party by whom the contract was made, or of the party for whom the contract was made. So, too, when money is paid by an agent in pursuance of an agreement made with him in his own name, the principal may recover it back upon the rescinding of the agreement, and if paid upon a consideration that has failed, the owner is entitled to an action for the recovery of it, if he can show the money was his. This last proposition embraces the cause of action, averred by the plaintiff here, and the question is, whether the witness, to whose competency the defendants take objection, was admissible to prove the original transaction? As a general proposition, it will not admit of doubt that an agent is a good witness for his principal, to prove contracts made by the agent, and other transactions in which the principal is interested, provided the case does not turn on the imputed misconduct or negligence of the agent; and he is, also, competent to prove his own authority. This rule is said to be founded in public convenience and necessity; for, without it, it would be extremely difficult to transact affairs of daily occurrence with...