Upon a demurrer to evidence, the testimony is to be taken most
strongly against him who demurs, and such conclusions as a jury
might justifiably draw the court ought to draw.
A bond may be delivered as an escrow by the surety to the
principal obligor.
The bond upon its face purports to be delivered absolutely, and
it is not to be doubted the obligees would be more secure against
fraud if the evidence that the writing was delivered as an escrow
appeared upon its face than by admitting parol testimony of that
fact. But the law is settled otherwise, and is not to be disturbed
by this Court.
If one of the obligors, at the time of executing the bond, in
the presence of some of the other obligors, says "we acknowledge
this instrument, but others are to sign it," this is evidence from
which the jury may infer a delivery as an escrow by all the
obligors who were then present.
When words are to be proved by witnesses who depend on their
memory alone, the precise terms employed by the parties will seldom
be recollected, and courts and juries must form their opinions upon
the substance and upon all the circumstances.
Error to the District Court for the District of Kentucky in an
action of debt upon an official bond given by Ballinger as
collector of the revenue and signed and sealed by Pawling, Todd,
Adair, and Kennedy as his sureties, who pleaded that they delivered
the same as an escrow to one Joseph Ballinger, to be safely kept
upon condition that, if Simon Ingleman, and William Patton, named
on the face of the bond, should execute the same as co-sureties,
then the bond should be delivered to James Morrison, supervisor on
behalf of the United States as their deed, and not otherwise, and
that the same never was executed by Ingleman and Patton; yet
Ballinger delivered it to Morrison, on behalf of the United States,
and so not their deed. The delivery as an escrow being traversed by
the United States, issue was thereupon joined, in the trial of
which the United States demurred to the evidence produced on the
part of the defendants, which consisted of the depositions of T. T.
Davis, W. G. Bryant, one of the subscribing witnesses, Elijah
Stapp, another subscribing witness, John P. Wagnon, another
subscribing witness, and a letter from Morrison, the supervisor, to
Ballinger. The deposition of Davis states a conversation, between
Ballinger and Pawling, sometime before the signing of the bond, in
which the former told the latter that Todd, Kennedy, Shelby, Knox,
Ingleman, Logan, Lewis, and Adair had agreed to be security for
him, upon which Pawling also agreed to become his surety, but upon
the express condition that the other persons also should join in
the bond. It also states a subsequent conversation between the
deponent and Todd, before signing the bond, in which the latter
denied that he had agreed to become Ballinger's surety, but said
that he should not be apprehensive of danger if all the men whom
Davis had named would join in the bond.
The deposition of Bryant states that he saw Pawling, in the
presence of Ballinger, sign the bond on condition
Page 8 U. S. 220
that Kennedy, Todd, Adair, Davis, and others, whom the witness
did not recollect, should also sign the bond, and he understood
that Pawling was to be exonerated if they did not. The deposition
of Elijah Stapp states that he saw Pawling, in the hearing of
Ballinger, acknowledge the bond as his act and deed upon condition
that others mentioned should also sign it. The deposition of Wagnon
states that when Todd, Adair, and Kennedy signed the bond, Todd, in
the presence of the other two, after inserting in the bond the
names of other persons who he said were to sign it, called upon the
witness to take notice that others were to sign it, and said, "We
acknowledge this instrument of writing, but others are to sign it."
The letter from Morrison to Ballinger says
"I have received your favor by Mr. Davidson, who carries back
your bond; not that I require more securities, but that you
appeared anxious to have more; those who have already signed are
very sufficient."
It was admitted by the attorney for the United States that the
names of Thomas Kennedy, John Adair, Simon Ingleman, and William
Patton, inserted in the body of the bond as obligors, were in the
handwriting of the defendant Todd. This evidence, upon the
demurrer, was by the court below adjudged insufficient. The
defendants, the sureties, took a bill of exceptions to the refusal
of the court to suffer Ballinger, the principal obligor, to be
examined as a witness for them, they having severed in their pleas.
But as that question was not decided by this Court, it is deemed
unnecessary to state the arguments of counsel on that point.
Page 8 U. S. 221
MR. CHIEF JUSTICE MARSHALL delivered the opinion of the Court as
follows:
In this case, two points are made for the consideration of the
Court.
It is contended by the plaintiffs in error
1st. That judgment on the demurrers to evidence should have been
rendered for the defendants in the court below.
2d. That Joseph Ballinger ought to have been admitted as a
witness.
The general doctrine on a demurrer to evidence has been
correctly stated at the bar. The party demurring admits the truth
of the testimony to which he demurs
Page 8 U. S. 222
and also those conclusions of fact which a jury may fairly draw
from that testimony. Forced and violent inferences he does not
admit, but the testimony is to be taken most strongly against him,
and such conclusions as a jury might justifiably draw the court
ought to draw.
The point in issue between the parties was the delivery of the
instrument on which the suit was instituted. The plaintiffs below
contending that it was delivered absolutely, the defendants that it
was delivered as an escrow.
The bond, upon its face, purports to be delivered absolutely,
and it is not to be doubted that obligees would be much more secure
against fraud if the evidence that the writing was delivered as an
escrow appeared upon its face than by admitting parol testimony of
that fact. But the law is settled otherwise, and is not to be
disturbed by this Court.
The subscribing witnesses to the bond were examined to prove its
delivery. Henry Pawling executed it at one time, the other
defendants, Kennedy, Todd, and Adair, at a different time. With
respect to Pawling, the testimony is as complete as can be
required. William G. Bryant deposes that Pawling signed the bond on
condition that other persons, whom he named, should also sign it.
The witness understood that if those other persons should not sign
it, Pawling should be exonerated. Elijah Stapp, the other
subscribing witness to the signature of Pawling, deposed that "he
saw Pawling acknowledge it as his act and deed upon condition that
others, whom he mentioned, should also sign it."
These are the subscribing witnesses to the bond, and certainly a
jury believing them could not have avoided declaring by its verdict
that the bond was delivered on condition. That condition not having
been performed, the bond, as to Pawling, remains an escrow.
The testimony with respect to the other defendants is less
positive. The witness, John P. Wagnon, was
Page 8 U. S. 223
called in to attest the bond. Thomas Todd, one of the
defendants, then sat down and inserted in the body of the bond the
names of other persons who, he said, were also to execute the
instrument which he then held in his hand.
Some distinction was taken at the bar between the case of Todd
and that of the other defendants. But the Court is of opinion that
no such distinction exists. The other defendants said nothing. They
did not even acknowledge their signatures. Todd, holding the
instrument in his hands, called upon the witness to take notice
that "we" (in the plural) "acknowledge this instrument, but others
are to sign it." The two other obligors being present, and making
no other acknowledgment, are clearly to be considered as speaking
through Todd and executing the bond on the terms on which he
executed it. Their condition, then, is the same. It is either an
escrow or a writing obligatory with respect to all of them.
A jury might certainly have found the issue in favor of the
plaintiffs below, and a court would have been well satisfied with
their verdict. But might they not, without going against evidence,
have found the issue in favor of the defendants below?
When words are to be proved by witnesses who depend on their
memory alone, the precise terms employed by the parties will seldom
be recollected, and courts and juries must form their opinions upon
the substance and upon all the circumstances. Now to what purpose
did the defendants call upon the subscribing witness to take notice
that others, as well as themselves, were to execute the writing? To
what purpose did they qualify their acknowledgment with this
declaration? It could not be in order to show that they depended on
Ballinger to procure additional securities, for that was an affair
between him and them, of which it was perfectly unnecessary to call
on the witness to take notice, if it was to have no influence on
the particular fact he was required to attest. There is certainly
strong reason for believing that the obligors considered that
declaration as
Page 8 U. S. 224
explaining and affecting the act with which they connected
it.
It is also of some importance that the defendant Todd had
previously declared that he should not be apprehensive of becoming
a security for Ballinger, provided others, whom he named, should
also become securities and that he inserted the names of others in
the bond in the presence of the witness.
Although the judges who compose this Court might not, perhaps,
as jurors, be perfectly satisfied with this testimony, they cannot
say that a verdict would not be received or ought not to be
received which should find the issue in favor of the defendants
below. They cannot say that such a verdict would be against
evidence. Thinking so, the Court is of opinion that the judgment on
the demurrer ought to have been in favor of the defendants
below.
It is unnecessary to give any opinion on the second point. The
judgment of the Court for the District of Kentucky is to be
reversed.
Judgment reversed.
