Action for goods sold and delivered in Virginia. The defendants
in error had sold to the plaintiff a quantity of salt, and
afterwards received from him a promissory note payable at a future
day, which was endorsed by the vendee of the goods, the plaintiff
in error. The note being protested, suit was instituted against the
vendee as endorser of the note, and a judgment was obtained in his
favor on the ground that, by the law of Virginia, an action could
not be maintained against the endorser of a promissory note until
after judgment had been obtained against the drawer and proof of
his insolvency. This suit was brought on the original contract.
Held that this action on the original contract could be
maintained against the vendee of the goods, and that the judgment
in the suit on the note against the vendors was not a bar to the
same.
That although the endorser of the note, the plaintiff in error,
is entitled to the benefit of the note, yet as it was not an
extinguishment of the original debt, there was no absolute
necessity to prove an offer of the note before the institution of
the suit against him as vendee of the goods.
Page 5 U. S. 190
MR. CHIEF JUSTICE MARSHALL delivered the opinion of the
Court.
This was a suit brought by the defendants in error against the
plaintiff in the Circuit Court of the District of Columbia sitting
in the County of Alexandria, and the declaration contains two
counts for goods, wares, and merchandise sold and delivered and one
for money had and received to their use. The cause came on to be
tried on the general issue, and a verdict was found for the
plaintiffs below on which the court rendered judgment.
At the trial of the cause it appeared that the suit was brought
for a quantity of salt sold and delivered by Robert Young & Co.
to Clark, after which Clark endorsed to Robert Young & Co. a
promissory note made by Mark Edgar to John Pickersgill & Co.
which had been endorsed by them to the said Clark, and which was
payable sixty days after date.
This note was protested for nonpayment, after which a suit was
brought thereon by Robert Young & Co. in the County Court of
Fairfax against Clark, and the declaration contained two counts,
one on the endorsement and the other for money had and received to
the use of the plaintiffs. In this suit verdict and judgment were
given for the defendant Clark, the Court of Fairfax being of
opinion that a suit could not be maintained against the
endorser
Page 5 U. S. 191
of the note until a judgment had been first obtained against the
drawer and his insolvency made to appear.
After the determination of that action, this suit was instituted
on the original contract, and at the trial the counsel for the
defendant moved the court to instruct the jury that if from the
evidence given in the cause it should be of opinion that the
promissory note aforesaid was endorsed by the defendant to the
plaintiffs in consequence of the goods, wares, and merchandise sold
as aforesaid, although the said endorsement was not intended as an
absolute payment for the said goods, wares, and merchandise or
received as such by the plaintiffs, but merely as a conditional
payment thereof, yet the receipt of the said note under such
circumstances and the institution of the aforesaid suit by the said
plaintiffs against the said defendant on his endorsement aforesaid
made the said note so far a payment to the said plaintiffs for the
said goods, wares, and merchandise as to preclude them from
sustaining any action against the said defendant for the said
goods, wares and merchandise until they had taken such measures
against the said Mark Edgar as were required by the laws of
Virginia, and that the plaintiffs, having instituted the suit
aforesaid upon the said note against the said defendant, and that
having been decided against the said plaintiffs, they were barred
from sustaining this action against the said defendant.
This instruction the court refused to give, but directed the
jury that if it was of opinion from the evidence that the salt was
sold and delivered as alleged and that the promissory note
aforesaid was endorsed by the defendant to the plaintiffs in
consequence of the salt sold as aforesaid, although the said
endorsement was not intended as an absolute payment for the said
salt or received as such by the plaintiffs, but merely as a
conditional payment thereof, the same is a discharge to the
defendant for the salt sold to him unless it is proved that due
diligence has been used to receive the money due on the note, but
that the bringing suit on the said note against Mark Edgar was not
essentially necessary to constitute the said diligence, and that
the said diligence may be proved by other circumstances, and their
omitting to bring the said suit against Edgar may be accounted for
by the insolvency of Edgar,
Page 5 U. S. 192
if proved, or any conduct of the defendant which may have
prevented the bringing of the said suit.
To this opinion the counsel for the defendant excepted, and then
prayed the court to direct the jury that the defendant was entitled
to a credit for the amount of the said note unless the plaintiffs
could show that they had instituted a suit thereon against Edgar or
that Edgar had taken the oath of insolvency or absconded at the
time the note became payable, or unless the plaintiffs could show
that they had offered to return and reassign the said note to the
said defendant previous to the institution of this suit.
This direction the court refused to give, and referred the jury
to its opinion already given on the principal points now stated,
and to which an exception had already been taken. This opinion was
also excepted to. A verdict and judgment were then rendered for the
plaintiff without giving credit for Edgar's note, which judgment is
now brought into this Court by writ of error.
On these exceptions it has been argued that the court has erred
because
1. The conduct of the plaintiff, Young & Co., has disabled
it from maintaining this action, and such ought to have been the
direction to the jury.
2. The verdict and judgment in Fairfax Court are a bar to this
action.
The conduct of the plaintiffs was entirely before the jury, to
be judged of by it from the evidence, excepting only that part of
it respecting which the court gave an opinion. We are therefore
only to inquire whether the opinion given by the court be
erroneous.
It is agreed on both sides that the note in this case was not
received as payment of the debt, and consequently did not
extinguish the original contract. It was received as a conditional
payment only, and the opinion of the court was that in such a case
the want of due diligence to receive the money due thereon would
discharge the defendant. But the court proceeded to state that
due
Page 5 U. S. 193
diligence might be proved although no suit was instituted, and
that circumstances, such as the known insolvency of Edgar, the
drawer of the note, or any conduct of Clark preventing a suit would
excuse Young & Co. for not having instituted one.
This opinion of the court seems perfectly correct. The condition
annexed to the receipt of the note cannot be presumed to have
required that a suit should be brought against a known insolvent or
that it should be brought against the will of the endorser; if he
chose to dispense with it or took means to prevent it, nothing can
be more unreasonable than that he should be at liberty to avail
himself of a circumstance occasioned by his own conduct.
It is not intended to say that the person receiving such a note
is compellable, without special agreement, to sue upon it in any
state of things. It is not designed to say that he may not, on its
being protested, return it to the endorser and resort to his
original cause of action; it is only designed to say that under the
circumstances of this case, nothing can be more clear than that
there was no obligation to sue.
The court gave no opinion that the suit in Fairfax was or was
not a bar to that brought in the County of Alexandria.
It is, however, clear that no such bar was created.
To waive the question whether in such a case as this, with
declarations for such distinct causes, a verdict in a prior suit
may be given in evidence as a bar to another suit really for the
same cause of action, it is perfectly clear that in this case the
same question was not tried in both causes.
In Fairfax, the point decided was that the suit against the
endorser would not lie until a suit had been brought against the
drawer; in the suit in Alexandria, the point to be decided was
whether the plaintiffs had lost their remedy on the original
contract by their conduct respecting the note. These were distinct
points, and the merits of
Page 5 U. S. 194
the latter case were not involved in the decision of the
former.
On the second bill of exceptions, the only really new point made
is whether the action is maintainable unless Robert Young & Co.
had offered to return and reassign the note before the institution
of the suit.
Unquestionably Clark is entitled to the benefit of the note, but
as it was no extinguishment of the original cause of action, there
was no absolute necessity to prove an offer of the note before the
institution of the suit. Indeed it does not appear in this bill of
exceptions whether the note was merely a collateral security or a
conditional payment. This is nowhere stated positively. In the
first opinion of the court it is stated hypothetically, and that
opinion must be considered on the presumption that such was the
fact. But no such presumption is raised respecting the second
bill.
Judgment affirmed with costs.