Ming v. Woolfolk

• Decision Date: 01 February 1886
• Citation: 29 L.Ed. 740,6 S.Ct. 489,116 U.S. 599
• Parties: MING and another v. WOOLFOLK. 1 Filed
• Court: U.S. Supreme Court

6 S.Ct. 489

116 U.S. 599

29 L.Ed. 740

MING and another v. WOOLFOLK.¹

Filed February 1, 1886.

M. F. Morris and L. M. Saunders, for plaintiff in error.

A. M. Woolfolk, for himself.

WOODS, J.

The plaintiffs in error were the plaintiffs in the court below. They brought this suit against the defendant in error in the district court for the county of Lewis and Clarke, in Montana territory, and in their petition stated their case substantially as follows: On September 16, 1874, the defendant made and delivered to the plaintiffs his contract in writing, or which the following is a copy:

'HELENA September 16, 1874.

'Whereas, John Kinna and John H. Ming have this day joined with me in borrowing the sum of (2,572.10) twenty-five hundred and seventy-two and 10-100 dollars, for the purpose of paying R. S. Hale the balance of eight thousand dollars due him under private agreement with said Ming, Kinna, and Woolfolk, in order for their release from certain notes executed by them to said Hale, as security for the Park Ditch Company and whereas, the Park Ditch Company has pledged the note of William Chessman to it, and its claim against Felix Poznainsky, and any other demands due it, to the extent of repaying to the said Ming, Kinna, and Woolfolk the sum of $2,572.10, this day borrowed: now, therefore, the said Woolfolk does hereby agree that if he shall collect any of the agove amounts, or shall from any resources whatever of the Park Ditch Company receive any other sums, after deducting all costs, charges, and expenses, to apply the same in payment of said note, and also another note executed to R.S.Hale for taxes, amounting to between six and seven hundred dollars, until said notes shall be fully paid, said payments to be made by the said Woolfolk after his return from the east next spring, and as soon thereafter as the amounts shall be received; but the said Woolfolk does not assume to pay said note only to the extent that he shall recieve such amounts from the resources of the Park Ditch Company, as aforesaid.

'A. M. WOOLFOLK.'

The petition further averred that Woolfolk, in order to induce the plaintiffs to join him in borrowing the money and executing the note therefor, so as to accomplish the release of all three from their liability to Hale, represented to them that the Park Ditch Company had passed a resolution, in conformity with the recitals in the contract above set forth, by which it had pledged the Chessman note and the cliam against Poznainsky, and all of its resources, including all of its receipts for water sold and to be sold by it, sufficient to pay the said sum of $2,572.10, and that, relying on this representation, they joined in the borrowing of said money and the execution of the note therefor; that the Park Ditch Company had never passed such resolution; that the plaintiffs had each paid out of his own funds the one-third of said note for borrowed money, and they had also paid the sum of $445.50, being the two-thirds of the note mentioned in the contract which Hale had given for texes; that no part of said sums of money had been repaid to the plaintiffs, and the same were due to them, with interest. The petition further alleged that about May 1, 1875, the de- fendant took the control and management of the affairs of the Park Ditch Company, and between that date and September 1st following received on the Chessman note and the claim against Poznainsky about $3,000, and from sales of water and other resources of the Park Ditch Company more than $3,500, and he should have applied a sufficient part of these sums to the reimbursement of the plaintiffs for the moneys paid out by them as aforesaid, amounting in all to the sum of $2,255.64, but that he had refused so to do. The plaintiffs therefore prayed judgment against the defendant for the last-mentioned sum, with interest.

The defendant, in his answer, admitted the making of the contract set out in the declaration, but denied that there was any valuable consideration therefor; denied that he had stated to the plaintiffs that the Park Ditch Company had passed the resolution mentioned in the petition; denied that on May 1, 1875, or at any other time during that year, he took possession of the Park ditch, or the control or management of the Park Ditch Company; denied that he ever collected any sum whatever on the Chessman note or the Poznainsky claim, or ever received at any time after the execution of said contract from sales of water or any other resources of the Park Ditch Company, the sum of $3,500, or any other sum, after deducting costs, charges, and expenses. Upon the issues thus raised the case was tried.

After the plaintiffs had introduced their evidence and rested, the defendant moved the court for nonsuit. The court granted the motion, and rendered judgment for the defendant for costs. The plaintiffs thereupon took the case, by appeal, to the supreme court of the territory of Montana, which affirmed the judgment of the district court. By the present writ of error the plaintiffs seek the reversal of the judgment of the supreme court of Montana.

It appears from the record that the Park Ditch Company was a corporation organized under the laws of the territory of Montana; that on September 16, 1874, the date of the contract set out in the petition, it was insolvent, and that the plaintiffs and the defendant were jointly liable as its sureties to one R. S Hale for a balance of between $11,000 and $12,000, for which they held no indemnity, and that Haie, the creditor, offered to release them from this liability on the payment to him of the sum of $2,572.10, to pay which they borrowed the said money, and gave the note mentioned in the petition. Both the plaintiffs were examined as witnesses. Ming testified that the water rents which had been pledged, as he supposed,...