John Camden, Plaintiff In Error v. Thomas Doremus, Cornelius Suydam, James Suydam, and John Nixon, Defendants In Error

• Decision Date: 01 January 1845
• Citation: 3 How. 515,11 L.Ed. 705,44 U.S. 515
• Parties: JOHN B. CAMDEN, PLAINTIFF IN ERROR, v. THOMAS C. DOREMUS, CORNELIUS R. SUYDAM, JAMES SUYDAM, AND JOHN M. NIXON, DEFENDANTS IN ERROR
• Court: U.S. Supreme Court

44 U.S. 515

3 How. 515

11 L.Ed. 705

JOHN B. CAMDEN, PLAINTIFF IN ERROR, v. THOMAS C. DOREMUS, CORNELIUS R. SUYDAM, JAMES SUYDAM, AND JOHN M. NIXON, DEFENDANTS IN ERROR.

January Term, 1845

THIS case was brought up, by writ of error, from the Circuit Court of the United States for the district of Missouri.

The defendants in error were citizens of the state of New York and partners in trade under the name and style of Doremus, Suydams and Nixon. The plaintiff in error was the surviving partner of the mercantile house of John B. and Marbel Camden, which carried on business at St. Louis under the name and firm of J. B. and M. Camden. The plaintiff in error was sued in the court below as endorser of the following promissory note.

On the 8th of June, 1836, Ewing F. Calhoun executed this note, viz.:

'$4219 90.

'Twelve months after date, I promise to pay Judah Barrett, or order, four thousand two hundred and nineteen dollars and ninety cents, negotiable and payable at the Commercial Bank of Columbus, June 8, 1836.

EWING F. CALHOUN,

'Mississippi—1809.'

Columbus, Mississippi.'

Which note was endorsed by Barrett to Sterling Tarpley, or order, by him to J. B. and M. Camden, or order, and by them to Doremus, Suydams, and Nixon, or order.

On the 22d of August, 1836, the plaintiffs and defendant entered into the following agreement:

'New York, August 22d, 1836.

'Memorandum of an agreement and trade made by and between Doremus, Suydams and Nixon, of the city of New York, of the one part, and J. B. & M. Camden, of the city of St. Louis, of the other part, witnesseth: Whereas, the said Camdens have this day sold and assigned unto the said Doremus, Suydams and Nixon, a note for four thousand two hundred and nineteen 90/100 dollars, payable twelve months after date, and dated the eighth day of June, 1836, and negotiable and payable at the Commercial Bank of Columbus, Miss., executed by Ewing F. Calhoun to Judah Barrett, and endorsed by the said Judah Barrett and Sterling Tarpley and J. B. & M. Camden: Now, it is expressly understood and agreed by the contracting parties, that the said Doremus, Suydams and Nixon, are to send the said note to the said Commercial Bank of Columbus, Mississippi, for collection, and in the event of its not being paid at maturity, they are to use reasonable and due diligence to collect it of the drawer and two endorsers before they call upon the said Camdens; but in the event of its not being made out of them, then the said Camdens bind and obligate themselves, so soon as informed of the fact, to pay the said Doremus, Suydams and Nixon, the principal of the said note, together with its interest and all legal costs they may have incurred in attempting its collection.

J. B. & M. CAMDEN,

DOREMUS, SUYDAMS & NIXON.'

The note not being paid at maturity, suit was brought by the endorsers against the plaintiff in error as surviving partner of the endorsers J. B. & M. Camden.

Upon the trial of the cause, the plaintiff offered to read in evidence sundry depositions, and also a voluminous record, which are all set forth in full in the first bill of exceptions, but which it is impossible to insert here on account of their great length. They were,

1. The deposition of Thomas B. Winston, that he presented the note at the Commercial Bank of Columbus, and demanded payment thereof, which was refused; that payment was demanded on the 10th of June, 1837, because the day of payment fell on Sunday; that it was protested, and notices thereof sent to the first, second, and third endorsers.

2. The deposition of Ewing F. Calhoun, proving his own signature; the handwriting of the first and second endorsers; that he was sued at the first court after the note became due; that the suit was prosecuted as diligently as possible to a judgment and execution; that deponent continued to reside in Lowndes county, Mississippi, but that at the rendition of the judgment Barrett resided in South Carolina, and Tarpley in Texas; that Barrett and Tarpley were both insolvent, and had no property within the state of Mississippi, out of which to make the judgment, or any part thereof; that at the trial deponent was allowed a set-off against Tarpley, of about $1500, which Tarpley owed deponent at the time of the commencement of the suit, and before he received notice of Tarpley's endorsement.

3. The deposition of Samuel F. Butterworth, that the suit was prosecuted as diligently as possible to judgment and execution; that at October term, 1838, a verdict was rendered for the plaintiffs, which was set aside; that in April, 1839, another verdict was rendered, which was also set aside; that in December, 1839, a verdict was rendered for only $3498.46, upon which a fieri facias was issued, the statutes of the state not authorizing process against the person; that no property could be found out of which the execution or any part thereof could be made.

4. A document purporting to be a transcript of the record of the suit spoken of above, showing its progress up to the final return of the sheriff, which was as follows: 'The within named Ewing F. Calhoun, Judah Barrett, and Sterling O. Tarpley, have no goods or chattels, lands or tenements, within my county, whereof I can make the sums within mentioned, or any part thereof. March 28th, 1842.'

Each one of these papers was severally objected to by the defendant, but the court overruled the objection, and permitted them to be read in evidence. The admission of these four papers constituted the ground of the first bill of exceptions.

Bill of exceptions No. 2.

'Be it remembered, that on the trial of this cause, the plaintiffs, in addition to the evidence in the former bill of exceptions in this case contained, examined Pardon D. Tiffany as a witness, who testified, that shortly before this suit was brought, as well as after, he had conversations with the defendant in relation to the claim of the plaintiffs against him; and the defendant told the witness that he had transferred the note in question in the present action to the plaintiffs, for goods purchased from them, and that at the time he transferred the note to the plaintiffs he was indifferent whether they took it or not, as he considered some of the parties thereto as good as George Collier, (who is known to the court and jury as a very rich man.) Witness did not know whether defendant saw the note or not. The witness received a copy of the record of the suit in Lowndes county, Mississippi, brought by the plaintiffs against Ewing F. Calhoun, the maker of the note, and Judah Barrett and Sterling Tarpley, the endorsers; but witness could not say whether he received the copy from Mr. Adams, the agent of the plaintiffs, or from the defendant, or from Mr. Gamber, the counsel of the defendant. The defendant in his conversation with witness was aware of the nature of the plaintiffs' claim against him, and objected to the claim, alleging that the plaintiffs had not used due diligence to collect the amount of the note; he did not say that if he were satisfied that diligence had been used he would pay the claim; but he did say, that he was not bound to pay, and would not pay the claim; but made no other objection to the claim but want of diligence.'

The plaintiffs next gave in evidence an act of the legislature of the state of Mississippi, entitled 'an act to abolish imprisonment for debt,' approved February 15th, 1839, which act the parties here in open court agree may be read in any court in which this cause may be pending, from the printed statutes of the state of Mississippi.

The plaintiffs then proved the handwriting of the defendant to the following letter addressed to the plaintiffs, and read the same in evidence to the jury in the words following:

'Saint Louis, October 24th, 1839.

'Messrs. DOREMUS, SUYDAMS NIXON, New York:

'GENTS:—Your favor of the 11th inst. is received, and contents noted. It is quite out of our power to send you any New Orleans bills for your note on E. F. Calhoun. We trust you will before long receive a judgment for the entire debt, interest and cost, and that you will find by the virtue of an execution that 'insolvency has not passed upon them all.' Those who have gone to Texas may yet make a great rise in that fine country. We regret that the note has been so difficult of collection. We scarcely know which, you or we, made the worst trade; we have many of the goods on hand we got for it.

Your friends,

'J. B. & M. CAMDEN.

'Your message to Mr. Homans, cashier, has been attended to, and delivered.'

It was admitted by defendant's counsel, that the endorsements on the note given in evidence were filled up in the handwriting of Josiah Spalding, the counsel of the plaintiffs in this action, for the purposes of this suit. It was also admitted that the laws of the state of New York placed the liability of endorsers upon promissory notes on the same footing with the liability of endorsers upon inland bills of exchange under the general law merchant.

The plaintiffs having here closed their case, the defendant produced one William C. Anderson as a witness, who, being sworn, testified that he had been employed in several banks, and had conducted one in St. Louis himself; that the practice in banks in relation to notes deposited with them for collection, was to give notice to the payer of the note that it was in the bank, and when it would become due; that the effect on the credit of a payer, if a failure to pay the note when it became due, was different in eastern and western banks. In banks at the east, paper deposited for collection was considered almost as sacred as paper discounted by the banks, and a failure to pay would stop the accommodation of the payer at the bank; but in the western banks, the effect of permitting collection paper to lie over was not of much consequence to the credit of the payer. The defendant's counsel having asked the witness, whether a note presented at a bank for payment on the...