Ohleyer v. Bernheim

• Decision Date: 04 November 1889
• Court: Mississippi Supreme Court
• Parties: JOHN OHLEYER v. BERNHEIM BROS. AND URI

7 So. 319

67 Miss. 75

JOHN OHLEYER v. BERNHEIM BROS. AND URI

Supreme Court of Mississippi

November 4, 1889

FROM the circuit court of Rankin county, HON. A. G. MAYERS, Judge.

This suit was brought by the appellees, Bernheim Bros. & Uri against the defendant, John Ohleyer, on the following bill of exchange: --

"$ 721.47.

BRANDON MISS., March 16, 1887.

On the first day of January, 1889, pay to the order of ourselves seven hundred and twenty-one 47/100 dollars, with 8 % interest from January 1, 1888, value received, and charge the same to account of

BERNHEIM BROS. & URI.

To Mr JOHN OHLEYER,

Brandon Miss."

This was accepted by the defendant, who wrote his name across the face of the bill in the usual way.

Besides the general issue, the defendant filed the following plea: --

"For further plea in this behalf defendant says actio non, because he says that the acceptance in plaintiff's declaration mentioned was for a debt already due plaintiffs by L. A Ohleyer, and not by this defendant. That defendant did not promise to pay the debt when it was made, or request plaintiffs to give the credit to L. A. Ohleyer; nor was said acceptance given in consideration of any forbearance to Sam L. A. Ohleyer; nor was there any agreement to release the debt against L. A. Ohleyer; nor was there any security given up in consideration of said acceptance; nor did defendant receive any benefit or advantage from said indebtedness or acceptance; nor have plaintiffs suffered any detriment from said acceptance. There was no consideration good or valuable in law for said acceptance; and this said defendant is ready to verify."

A demurrer was sustained to this plea, and afterwards there was a trial, and plaintiffs recovered judgment for the amount, of the debt. From this judgment defendant appealed. As the supreme court only considers the error assigned in sustaining the demurrer of plaintiffs to this plea, it is not necessary to make any further statement of the case.

Judgment reversed, demurrer overruled and cause remanded.

Wm. Buchanan, for appellant.

1. The demurrer is general, and does not point out any defect in the plea, as required by code 1880, § 1560.

2. The plea is sufficient. It contains all that is required by the rules of pleading in showing the actual grounds of defense. It is familiar learning that even a written promise to pay the existing debt of another is of no effect unless based upon a new consideration. 1 Wait's A. & D. 104, 615; 6 Ib. 568; 7 Id. 10, § 6; Story on Bills, §§ 119, 253; Wren v. Hoffman, 41 Miss. 616. See, also, 1 Thompson on Trials, § 1137; 7 Johns. 25; 18 Ala. 117.

Forbearance is not a sufficient consideration for a promise to pay the debt of another unless there be a binding contract to forbear. McFarland v. Smith, 6 Cowan [N.Y.] 669; Perkins v. Proud, 62 Barb. [N. Y.] 420; Gilman v. Kibler, 5 Humph. [Tenn.] 24.

By the plea the plaintiffs were fully apprised of the defense and what they were called upon to answer. Plaintiffs were immediate parties to the transaction and were acquainted with all the facts. When the bill is in the hands of a third party, greater particularity is required in the statement of facts showing a want of consideration. As the plaintiffs themselves are the drawers of the bill, the facts are as much within their knowledge as the defendant. 1 Chitty Pldg. 222, 225.

Our statute simply requires a statement of the facts constituting the defense; and if the pica contain matter of substance sufficient for the court to proceed upon the merits of the cause, it is sufficient. Code 1880, §§ 1536, 1546.

The cases of Barkley v. Hanlon, 55 Miss. 609, Tittle v. Booner, 53 Ib. 578, and others relied on IV plaintiffs, had reference to suits in which the payee was not the drawer of the bill. The rule governing in those cases is not applicable here.

3. A want of consideration may always be shown. Story on Bills, §§ 180-187; Byles on Bills, 2, 97.

J. R. Enochs, on the same side.

1. Between the original parties the question of consideration is always open. Walker's Am. L. 474, 476. Our statute allows the defendant in any case of this character the benefit of all want of lawful consideration. Code 1880, § 1124.

2. The plea in this case states affirmatively how there was no consideration, and shows the actual ground of the defense. In the case of Tittle v. Bonner, relied upon by opposite counsel, it was held that Tittle in defending against Bonner ought to have stated some fact showing that Bonner was not a bona fide holder, and this would have negatived the idea that there was some benefit or advantage to Howell, the drawer. Here there is no third party. Plaintiffs drew the bill payable to themselves. The plea shows that the acceptance was for the debt due plaintiffs by L. A. Ohleyer; that the defendant was not liable for tiffs debt; that there was no forbearance and no agreement to release the debtor; that no security was given up, and that plaintiffs suffered no detriment. It is full and explicit and presents a good defense. See Walker's Am. L. 442, and cases there cited. In Hall v. Clopton, 56 Miss. 555, James Haughton signed the notes in consideration of forbearance to L. Haughton the original debtor. There was no agreement for forbearance as to L. A. Ohleyer in this case; and if any loss to plaintiffs or delay followed, it was the voluntary act of the plaintiffs with a full knowledge of all the facts.

A. J. McLaurin and P. Henry, for appellees.

The pleading is to be taken most strongly against the defendant and most favorably to the plaintiffs. Gould's Pldg., ch. 3, 169.

The defendant was required to set out the actual consideration that the court might judge of it. Tittle v. Bonner, 53 Miss. 578. In order to make his plea a good defence, he must negative every possible thing that could constitute a consideration. Ridout v. Bristow, 1 Crompton and Jervis [Ex. Ch.], 231; 2 Vt. 510.

It was not necessary that a benefit or advantage accrued to the defendant. Violett v. Patton, 5 Cranch, 150; Hall v. Clopton, 56 Miss. 555.

That "plaintiffs suffered no detriment from said acceptance," is a conclusion of law instead of a statement of facts. Such pleading is not allowable. Tittle v. Bonner, supra.

But it was not necessary that there should be any detriment. "Loss, or the danqer of loss, to the creditor is a consideration as sufficient as benefit to the debtor." Hall v. Clopton, supra.

The detriment to the plaintiffs was not "from said acceptance," but from the failure to meet it when due. Plaintiffs took the acceptance, payable nearly two years afterwards and waited patiently; there was no detriment until the defendant failed to make good his promise. It required the payment of the bill to save them harmless. This was a sufficient consideration. Paine v. R. R. Co., 118 U.S. 152.

"Where the defendant has actually received the consideration of a written agreement, it is no answer to an action brought against him for a breach of the same, to say that the agreement did not bind the plaintiff." Storm v. U.S. 94 U.S. 76. To apply the doctrine of want of consideration, all the circumstances must be considered. 10 Wheaton, 345.

The plea as amended states what the consideration was, and it shows such a consideration as is sufficient to uphold the acceptance. The debt of a third person is a sufficient consideration to uphold a bill of exchange. Story on Bills, §§ 183, 192; Chitty on Bills, 84; Sowerby v. Butcher, 2 C. & M. [Exch.] 368; Papwell v. Wilson, 1 Str. 264; Bayley on Bills, 555, 557.

The burden of proof, and therefore the burden of pleading, was upon the defendant to show a want of consideration. Story on Bills, § 178. This has been attempted by saying that certain things were not the consideration. It is not stated what agreement was made, but that certain agreements were not made.

It matters not whether the acceptance was for the accommodation of defendant's son, or that he had funds for his son. Story on Bills, §§ 183, 191, 192, 253. If the son had drawn the bill, after acceptance, defendant could not have questioned it. Hortsman v. Henshaw, 11 How. [U.S.] 177; 2 Pet. 182. It is not averred that defendant did not have funds of L. A. Ohleyer to pay the bill. There is no difference in effect between the drawing of L. A. Ohleyer for payment of this debt and the drawing by plaintiffs. The acceptance admits the right to draw. Story on Bills, § 262.

The legal effect of the bill was to postpone, until its maturity, the payment of the debt due plaintiffs. Duncan v. Kimball, 3 Wall. 37; 93 U.S. 143. This would be true, unless there was an express agreement to the contrary, and if there was such agreement it should have been stated in the plea. Though not a party to the contract, L. A. Ohleyer could have enforced the contract of forbearance. Hendrick v. Lindsay, 93 U.S. 143. When defendant accepted the bill he became the principal debtor. Story on Bills, §§ 13, 268; 2 Wheaton, 385.

If L. A. Ohleyer had drawn the bill, whether for a pre-existing debt or a new consideration, the defendant after acceptance would certainly be liable. 2 Pet. 182. In such case the drawer and acceptor would not have been joint debtors; their contracts would have been separate. Story on Bills, §§ 121, 191, 253. And the consideration passing between the drawer and acceptor to induce the acceptance would have been a matter with which plaintiffs would have no concern.

The presumption of law is that the defendant had funds belonging to L. A. Ohleyer or had made arrangements by which he would be enabled to meet the acceptance. Relying upon this, the plaintiffs waited until the maturity of the bill. Lapham v. Barrett, 1 Vt. 247. This was a sufficient consideration.

The plea does not...