John Niel, Plaintiff In Error v. Lowell Holbrook

• Decision Date: 01 January 1838
• Parties: JOHN M'NIEL, PLAINTIFF IN ERROR v. LOWELL HOLBROOK
• Court: U.S. Supreme Court

37 U.S. 84

12 Pet. 84

9 L.Ed. 1009

JOHN M'NIEL, PLAINTIFF IN ERROR v. LOWELL HOLBROOK.

January Term, 1838

ERROR to the circuit court of the United States, for the district of Georgia.

In the circuit court of the United States, for the district of Georgia, Lowell Holbrook instituted an action on four promissory notes; one of which was drawn by the plaintiff in error, in favour of Lowell Holbrook, and the three other notes were drawn in favour of other persons, who had endorsed the same over to Mr. Holbrook. An affidavit of the agent of the plaintiff, stating that the defendant, John M'Niel, was indebted to Lowell Holbrook in the amount of the said notes, was filed with the declaration. Issue being joined in the suit, the plaintiff to support the action, without having proved the handwriting of the drawer of the notes, or of those who had endorsed three of the notes to him, offered the testimony of W. W. Gordon, Esq. the counsel of the plaintiff, to prove 'that John M'Niel had repeatedly, and as late as November 1st, 1835, admitted his indebtedness upon those promissory notes; and, at the same time, offered to confess a judgment for the amount of principal and interest, upon certain terms, by which he was to be allowed time for the payment of part. The negotiation continued until November 3d, 1836; and then was only not completed, from the inability of John M'Niel to pay the cash, which he had in the first instance offered.' The defendant objected to the admission of this evidence, and insisted that the acknowledgment was only an offer by the defendant to buy his peace, by a compromise made in the course of a negotiation, for the settlement of the claim of Mr. Lowell Holbrook; which said compromise and negotiation having failed, the acknowledgment could not be given in evidence, to sustain the claim of the plaintiff. The defendant also objected to the evidence; as the plaintiff had declared against the defendant as endorser of promissory notes alleged to have been made by certain persons to him, he was bound to prove the endorsement of the notes by the said persons; and the court could not dispense with the proof of the endorsements. The court refused to give the instructions, as asked by the defendant; and instructed the jury, that the evidence offered and admitted was sufficient to entitle the plaintiff to recover against the defendant.

The jury having found a verdict for the plaintiff, according to the instructions of the court, and judgment having been entered thereon; the defendant prosecuted this writ of error.

The case was submitted to the Court by Mr. King: who also moved the Court to allow damages to the defendant in error, at the rate of ten per centum per annum, according to the 17th rule of the Court; which allows such damages, when a writ of error is sued out for delay.

Mr. Chief Justice TANEY delivered the opinion of the Court.

This case comes up upon a writ of error directed to the circuit court for the district of Georgia.

An action of assumpsit was brought in that court by Lowell Holbrook against John M'Niel, to recover the amount of four promissory notes made by the defendant; one of them payable to Lowell Holbrook, and three to other persons, who had endorsed them to the said Holbrook, who was the plaintiff in the court below.

The plaintiff declared on the promissory notes; and did not insert in the declaration any of the usual money counts. The defendant pleaded the general issue; and at the trial of the case, the plaintiff offered to prove, by a competent witness, 'that John M'Niel had repeatedly, and as late as the first of November, (the trial took place on the 11th of that month) admitted his indebtedness, upon these four promissory notes; and at that time offered to confess a judgment for the amount of principal and interest, upon certain terms, by which he was to be allowed time for the payment of part. The negotiation continued until the third of November, and was then only not completed from John M'Niel's inability to pay the cash, which he had in the first instance offered.' The counsel for the defendant objected to the admissibility of this evidence, upon the ground that it was merely an offer on the part of the defendant to buy his peace, in the course of a negotiation for the settlement of the calim of the plaintiff, which had failed. The objection was overruled by the court, and the evidence given to the jury. The defendant excepted to this opinion of the court.

The notes, (which were endorsed in blank) together with the evidence above stated, was the only testimony given in the cause. The plaintiff offered no evidence to prove the handwriting of the drawer or endorsers; and no evidence was offered by the defendant.

The defendant thereupon moved the court to instruct the jury: 1st. That the evidence given on the part of the plaintiff, was not sufficient to entitle him to recover on the three notes, on which he had declared as endorsee; without proving the endorsements of the payees mentioned in the said notes. 2d. That if the jury believed the acknowledgment abovementioned to have been made by the defendant, in the course of a negotiation with the plaintiff, or his attorney, for a compromise, which had failed; and for the purpose of buying his peace by such compromise; that such acknowledgment was not sufficient of entitle the plaintiff to recover on the three notes, on which he sued as endorsee, without proving the endorsement of the payees. A third prayer was also made, which is the same in substance with the first. The court refused to give the instructions asked for by the defendant, and directed the jury, that the evidence was sufficient to entitle the plaintiff to recover. To these opinions and to the instruction of the court, the defendant excepted; and the case has been brought here for the revision of this Court.

We think the circuit court was right in admitting the evidence above stated. There does not appear to have been any dispute between the parties, as to the amount due on the notes, nor as to the plaintiff's right to receive it. The negotiation as disclosed in the testimony, was altogether concerning the time of payment, and not in relation to the amount to be paid; and the defendant, in the course of that negotiation, admitted the debt; and...