Hopkins, Bro. & Co. v. Richardson

• Citation: 50 Va. 485
• Court: Supreme Court of Virginia
• Decision Date: 15 November 1852
• Parties: HOPKINS, Brother & Co. v. RICHARDSON.

50 Va. 485

HOPKINS, Brother & Co. v. RICHARDSON.

Supreme Court of Appeals of Virginia.

November 15, 1852

1. Upon a demurrer to a count in a declaration on the ground of duplicity, the demurrer is sustained; and then the plaintiff with the leave of the court, amends the count. He cannot object in an appellate court that the court below erred in sustaining the demurrer.

2. R assigns the bond of G to K without consideration, and K transfers it to H as collateral security for goods purchased of H on a credit, upon the understanding that if R does not acknowledge his liability as assignor of said bond, H may return it and look out for other security. R being called on by H to know if he was responsible as assignor of the bond assured H in writing that he was aware of no offset or objection to said bond, nor of anything to affect his liability as assignor thereof. H therefore did not return the bond and apply for other security. When the time for payment for the goods arrived G was insolvent. This was not a sufficient consideration to support an action of assumpsit by H against R.

3. R assigns the bond of G to K to enable K to purchase goods on the credit of his assignment, and guarantees the payment of the bond, by the endorsement on the back thereof, signed with his name: And K purchases goods of H on the credit of that assignment and guarantee. This is not an undertaking for the debt of another to which the statute of frauds and perjuries will apply.

4. R assigns the bond of G to K by endorsing his name in blank thereon for the purpose of enabling K to buy goods on the faith of his endorsement, and H sells goods to K upon the faith of the same, and before the time of payment for the goods arrives G becomes insolvent. H may maintain an action of assumpsit against R either as assignor or guarantor of the bond.

5. R assigns the bond of G to K to enable K to purchase goods on the credit of R's assignment, and K purchases goods of H upon the credit thereof. In an action by H against R upon that assignment, the statements of K to H in relation to said assignment, pending the negotiation for the goods and the transfer of the bond of G, are competent evidence against R but the statements of K at a subsequent period are not competent evidence against R.

6. Declarations of R made during the conversation and consultations in relation to his assignment of the bond of G to K, though made a day or two before the bond was assigned are competent evidence for R as a part of the res gestæ , to show that he did not make the assignment under such circumstances, or with such intent, as would render him liable upon the assignment to the holder of the bond.

7. If there is any evidence before a jury tending to prove a case supposed in an instruction asked for, and the instruction propounds the law correctly, it should be given.

8. The admission of an improper plea is error, and the appellate court will not enquire whether or not the plaintiff could be injured by its admission.

This was an action of assumpsit in the Circuit court of Clarke county by Hopkins, Brother & Co. v. John Richardson. The case is sufficiently stated in the opinion of Judge Lee. On the trial there was a verdict and judgment for the defendant; whereupon the plaintiffs applied to this court for a supersedeas, which was awarded.

Patton, for the appellants.

Morson, for the appellee.

LEE J.

This was an action of assumpsit brought in the Circuit court of Clarke county by the plaintiffs in error against the defendant. The declaration contained five counts. The defendant appeared and filed a general demurrer to the third count and a special demurrer to the second and fourth counts, assigning for cause in the latter that each of those counts contained two separate, distinct and complete causes of action. The plaintiffs joined in these demurrers, and the same having been argued, the court held the third count insufficient, and the general demurrer to it was sustained. The court also expressed the opinion that the objection made to the second and fourth counts was well taken; but leave was given to the plaintiffs to amend those counts. Of this leave the plaintiffs availed themselves by striking out of each of those counts what was supposed to constitute one of the two distinct causes of action which it was alleged were improperly blended in one count; and the defendant then demurred generally to those two counts thus amended. On consideration of the demurrers to these amended counts, the court held the counts good, and the demurrers were overruled. The defendant also pleaded non assumpsit to each count of the declaration, and a special plea to the second and fourth counts, which though objected to was allowed by the court. And the jury having rendered a verdict for the defendant upon the issues joined, the plaintiffs obtained a supersedeas from this court.

The petitioners assign various causes of error in the said judgment, and amongst the rest, they complain that the court improperly sustained the special demurrers first filed to the second and fourth counts. I think it however unnecessary to consider those counts as first framed, or to determine whether they were obnoxious to the charge of duplicity or not; because the plaintiffs, by availing themselves of the leave given to amend and striking from the counts what was supposed to render them double, must be held to have waived the question and to have been content to stand upon the counts as amended; and they cannot now be entertained here to make the objection that the Circuit court erred in its opinion that those counts were justly obnoxious to the charge of duplicity. If they had desired to test the correctness of that opinion and to obtain the benefit of the counts as originally framed, they should have allowed the special demurrers to be sustained and the counts held for naught, instead of amending them to conform to the opinion of the court, as they elected to do.

The plaintiffs in error also complain that the court erred in sustaining the demurrer to the third count in the declaration. This count alleges that Richardson being the holder of a bond on Gibson, which is described by its date amount and time of payment, assigned the same to Kirby by a written assignment on the back thereof, subscribed with his proper name. That the said Kirby afterwards proposed to the plaintiffs in Baltimore, that if they would sell goods, & c. to the firm of Bushnell, Kirby & Co. of which he, Kirby, was a partner, he would assign the said bond to them as collateral security for the payment of the same; and at the same time he, Kirby, represented to the plaintiffs that Richardson was liable as the assignor of the bond for the payment thereof if the money could not be made out of Gibson. That in consideration of the premises, the plaintiffs sold to said Bushnell, Kirby & Co. goods to the amount of 3254 dollars 88 cents, on a credit of six months, with the understanding that if Richardson did not acknowledge his liability as assignor of said bond, the plaintiffs were to be at liberty to return it to Bushnell, Kirby & Co. and " look out for other security." That Kirby did assign said bond to the plaintiffs for the purpose aforesaid, for value received; of all which Richardson, & c. had notice. That afterwards the said Richardson, being called upon by plaintiffs to know if he was responsible as assignor of said bond, assured the plaintiffs in writing that he was aware of no offset or objection to said bond, nor of anything to affect his liability as assignor thereof. That in consideration of the premises, the plaintiffs did not endeavor to obtain other security from said Bushnell, Kirby & Co., and did not bring suit against them for the amount of the goods, but forbore to do so, and retained the bond of Gibson for a long time, to wit, six months. That when said bond became due and payable, the said Gibson was notoriously insolvent, and so continued to be, so that no part of the amount thereof could be made out of him; and that he had not paid the same either to the said Kirby or to the plaintiffs; nor had the said Bushnell, Kirby & Co. ever paid the plaintiffs the amount of the goods so sold as aforesaid: of all which Richardson had notice. By virtue whereof, it is charged the said Richardson became indebted to the plaintiffs in the amount of the goods so sold to Bushnell, Kirby & Co. as aforesaid, with interest; and being so indebted, in consideration thereof promised to pay the same when afterwards requested. Now it appears to me that this count lacks that indispensable element of a good declaration in assumpsit, an averment of a good and sufficient consideration for the promise imputed to the defendant. The consideration stated is the legal liability which it is averred had devolved upon the defendant by reason of the premises set out in the count; and the question is, whether such legal liability is made out. It is not alleged that any consideration passed from Kirby to Richardson for the assignment of Gibson's bond by the latter, nor that the said assignment was accompanied by any agreement to guarantee the payment of the bond, or any intention declared on the part of Richardson to enable Kirby to purchase goods on the credit of his liability as assignor to make good the amount if Gibson proved insolvent. The plaintiffs parted with their goods without first conferring with Richardson on the subject, and not on the faith of his liability, because they took the bond as collateral security only, reserving expressly the right to look out for other security if Richardson should not acknowledge his liability as assignor. The written assurance given by Richardson after the goods had been sold, that he knew nothing which could affect...