McCulloch v. McKee

• Decision Date: 12 June 1851
• Citation: 16 Pa. 289
• Parties: McCulloch <I>versus</I> McKee.
• Court: Pennsylvania Supreme Court

16 Pa. 289

McCulloch versus McKee.

Supreme Court of Pennsylvania.

June 12, 1851.

ERROR to the Common Pleas of Cumberland county.

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The case was argued by Miller, for plaintiff in error.—He contended that the parol evidence admitted to impeach the sealed note was not admissible: 1 Green. Ev. 398, &c. 4 Barr 493; 10 Shep. 517; 8 Miss. 161; 14 id. 154; 8 Ser. & R. 473. As to 2d assignment. McCullough had authority to take whatever means he thought best to accomplish the object: Smith's Mer. Law 61; Law Lib. 17; 4 Camp. 43; 5 Bin. 442; 5 Esp. 75; 15 East 408; 8 T. Rep. 531; 24 Wend. 240; 5 Barr 335. When the agent has a beneficial interest in the performance of the contract he makes, he can sue in his own name: 4 Iredell 275; Smith's Mer. Law 76.

McKee could not disaffirm the note when no evidence was given that Carpenter disapproved of it, and when he could have plead the statute of limitations in a suit on the original note: 5 Johns. 43; 6 Barr 277.

Biddle, for defendant.

The opinion of the court was delivered June 12, by CHAMBERS, J.

On the trial of this cause, the defendant offered to prove that the single bill of defendant given in evidence was in consideration of the indebtedness of the defendant to Lewis Carpenter, and that it was given under an arrangement between McCulloch and the defendant, that McCulloch would pay the money for the defendant to Carpenter; but that he never paid said money, by which the consideration of the note failed. This was objected to, and the objection overruled — evidence admitted, and exception taken, which is now assigned for error.

It is well settled in Pennsylvania that fraud or failure of consideration may be given in evidence, under the plea of payment with leave, &c., in an action on a note or bond: Baring v. Shippen, 2 Bin. 166; Stubbs v. King, 14 Ser. & R. 206.

Evidence is received to prove that a bond was fraudulently obtained or that the consideration has failed: Carpenter v. Groff, 5 Ser. & R. 162; Geiger v. Cook, 3 W. & Ser. 266; Houk v. Foley, 2 Pa. Rep. 245.

This jurisprudence is too well established in Pennsylvania as a part of our system of laws, to be departed from or influenced by the decisions on the subject in other States — and in the admission of the parol evidence offered there was no error.

The other errors assigned to the charge of the court may be considered together.

It appears from the evidence, which consisted of the admissions of McCulloch before the justice, that he was authorized by Carpenter to receive from McKee the amount of a note, or due-bill, held on him by Carpenter, which was given in 1837, for $39 — that McKee was scarce of money, and McCulloch agreed to satisfy the debt to Carpenter — that he, McCulloch, had money standing with General Miller, who was going to Gettysburg, where Carpenter then lived, and that he would get him, Miller, to pay the money to Carpenter. McCulloch said that Miller had seen Carpenter and had offered him the money, and that he refused to take it, but sent it back, and that he had sent the money a second time with General Miller, and that Miller could not find Carpenter. There was no other consideration for the note, and no part of the money was paid by McCulloch to Carpenter, whose residence, at the trial, was unknown, and who had not been heard of for many years. It was also in evidence that Carpenter had lived with McCulloch and went away in 1837, leaving with McCulloch the note of McKee, with directions to collect it and keep it until he called for it. In 1844 McKee executed to McCulloch a single bill, given in evidence, for the amount of his due-bill to Carpenter, payable ten days after date, and had delivered up to him the due bill, and the order of Lewis Carpenter without date, to D. J. McKee to pay the note to D. W. McCulloch. McCulloch, as was admitted, was to pay Carpenter for McKee, which was not done.

The court below, after stating the evidence and remarking on the consideration of the single bill being a proper subject of inquiry, through the medium of parol proof, further observe, "that the authority of McCulloch was to collect the money; but without authority and without the payment of the money, he undertook to release the debt and take a note to himself for it, to change Carpenter's debtor from McKee to himself, without his consent. His having done so would not change the relation of debtor and creditor between McKee and Carpenter, and the liability of the former to the latter to pay the money was not...