Clarke v. Russel

¶1IN Error from the Circuit Court, for the Diftrhft of Rhode-If and. Ón the return of the Record, it appeared that a declaration, containing the following Count, had been filed in an a<Sion brought by “ Nathaniel Rujfel of Charlefon, in the Diftridi of South-Carolina, merchant and citizen of the State of South-Carolina, againft John Innes Gldrke of Providence-, in the County of Providence and. Diftriit of Rhode-If and, .merchant and citizen of the-State of Rhode- Ifand, and fur-viving partner of the company of Jofeph Nightingale, now deCea'fed, and the faid John Innes Clarke, heretofore doing bu-finefs under the firm of Clarke and Nightingale

¶2lit Cthint. “ That the faid John Innes Clarke and Jofeph K 'Nightingale,.then in full life, on the 10th day of.March 1796, “ at the DiftriiS of Rhode-If and, in confideration that the Plaintiff would at the (pedal .inftance arid requeft of the M faid .Jofeph and John Innes, indorfe feven feveral fetts of “ bills of Exchange, of the daté, tenor, and defcription as-fet. ‘c forth in the annexed fchedule, drawn by a certain Jonathan “ Rujfel, who was agent and partner in that particular of « the company of Robert Murray and company, of New- “ York, in' the DiftriiS of New-York, on themfelves affirmed, ■ “ and to the Plaintiff faithfully promifed, that if the faid bills “ íhóuld not be paid by the.perfon on whom the f^me were drawn, and. the Plaintiff, in ctmfequencé of fuch endorfe- “ ment fhould be obliged to pay the fame bills, with damages, .w cofts, and intereft thereon, they the faid Jofeph and Johrl “ Innes would well and truly pay to the Plaintiff the amount M of the faid bills, damages, and- cofts, and intereft, if the Draw- *416“ er of faid bills did not pay the fame to the faid Plaintiff “■ And the faid Plaintiff in fadt faith that in confideration of, “ and truffing to, the faid affumption and promife,hedid indorfo “ the faid bills : and the fajd Plaintiff further in fadt faith that the.perfon, on whom the faid bills were drawn, did not ac- “ cept,'Or pay the faid bills, but that the faid bills were, in due “ form of'law, protefted for non-payment, of which non-pay-. ⅞ ment and proteft, notice was given in due form of law to the “ drawer thereof, and alfo to the Plaintiff, to wit, on the 13:!* tc day.of September, J796, at faid Diftridt of Rhode-Ifand,by “ reafon whereof, in confequence of faid indorfement, the “ -Plaintiff was obliged to pay the faid bill', with damage’s, cofts tc and intereft thereon, amounting to ,£.474.4., 13, 1.. flerling <c money of'Great Britain* equal in value to 2,0,338 dollars u and'52 cents, and adtually did pay the fum of money laft 4C mentioned, in difcharge of the faid bills, before the com- “ mencement of this fuit, to wit, on the laid 1.3th day of Sep-*l terrber, 1796, at'the Driftrift of Rhode-IJlgnd, aforefaid, of ‘c which the drawer of- the faid bills, on the day, and year, and “ at the Diftndt laft aforefaid had notice, and the fafrd, drawer <c was then,. and there requefted by the Plaintiff to pav to <c him the fum of money laft aforefaid', which he, the (aid draw-<c er, refufed tó do, of all which the faid Jofeph and John Innes, .<c afterwards,' to wit, on the day and year laft aforefaid, at the “ Diftrict aforefaid, bad notice, Nevertheless, &c.”

¶3The Defendant pleaded‘'«i« affumfft.; and thereupon iffue was joined* On the trial the Jury found for the Plaintiff on the firft Couqt, with 22,839 dollars and 80 cents damages ; and for the Defendant on all the other Counts in the declaration. On this verdidl judgment was rendered; but. the Defendant-having filed a bill of exceptions; brought the préfent Writ of Error. The bill of exceptions was founded on the following feafons,.which it fet forth’at large: .

¶4■ lft. That upon the trial of the iffue “ the Counfel learned “ in the law for the faid Nathaniel Rujfel to maintain and ⅛ prove the faid iffue, offered in evidence the aforefaid foreign “ bills of exchange, with protefts for non-payment, but with- “ out any protefts for non-acceptance of the fame, or of' any “ of them.”

¶52d. That “ the faid Counfel alfo contended, and infifted be- “ fore the Jury, that- two -letters of Clarke and Nightingale,: A directed, to the Plaintiff, and dated January 2,0th, and 2i/?. “ 1796, did import, an engagement, or promifo by the faid * Clarke. Nightingale to the Plaintiff,’that the faid Robert *41751 Murray & Co. would fully comply with any contracts oreniC gagemeiits they might make with the Plaintiff.

¶63d. That “ the faid counfel alfo contended and infilled bet£ before the Jury, that parol teftimony is allowable by law to S£ explain faid written promife, or engagement, expr'effed in “ faid letters.” ,

¶7“ But the counfel for the faid John Innis Clark, before faid t£ court did objedl, again ft faid bills of exchange, as evidence in “ faid cafe, by reáfon that the fame, or any of them, did not ap- “ pear to have been protefted for non-acceptance: And did “ infift before the Jury, that the faid letters'did not .import any “ promife or engagement by the faid Clerk £c? Nightingale, to “ the Plaintiff that the faid Robert Murray & Co. would fully “ comply with any contradi: Or engagements they might make with the Plaintiff: And that the promife or engagement, by “ the Plaintiff attempted to be proved to be made by the faid “ Clerk and Nightingale with the Plaintiff in thé faid létters, “ ought'not to be explained by parol teftirnonyj .'Which had paf- “ fed to the jury without objeftion thereto by the-faid counfelj “ they only objecting afterwards to its applicability to . the" faid <£ written evidence'of the faid promife in the faid letters;

¶8“ And $he Juftice who tried the faid caufe*, .did then and “there deliver, his opinion to the jury aforefaidj that faid “ foreign bills of exchange ought to be admitted and pafs ihe- “ vidence before the faid jury in faid cafe, without any proteft “ for non-acceptance: And the faid juftice did, aifo, declaré “ and deliver his opinion to the faid jury, that the faid letters “ of Clerk & Nightingale, direifted to the plaintiff, ánd dated the 20th and zift days of January, 1796, did import ah en- “ gagement or promife by the faid Clerk is Nightingale, to thé t£ Plaintiff, that the faid Robert Murray & Co: .would fully “ comply with any contradi or engagements they might enter “ into with the Plaintiff: And the laid Juftice did then and “ there declare that the faid written promife, by the Plaintiff “ attempted to b t proved with him by the faid Clerk & Night- “ ingate, by faid'letters of actfi and 21ft January,. 1796, to- “ have been madej might be explained by parol teftimony.”

¶9The letters, on which the atftion was founded, were expref-•fed in the following words:

¶10*418Providence, 20th January y ifgó*

¶11'Nathaniel Russell, Esq.

¶12BEAR SIR,

¶13OUR friends MeiTrs. Robert Murray fsf Co. merchants in New-Tork, having determined to enter largely .into the' purchafe of rice and other articles of your produce in Charleston, but being entire Arrangers there, they have applied to us for letters of introduction to our friends. In confequence of which, we do- ourfelves the pleafure of introducing them to your correfpondence, as a houfe, on wbofe integrity and punctuality theutmoft dependance maybe placed. They will write you the nature of their intentions, and you may be aflured of their^complying fully with any contracts or engagements they may enter into with you. The friendihip we haye for thsfe gentlemen induces us to vviih you will render them every Service in your power, at the fame time we flatter ourfelves this' correfpondence will prove a mutual benefit.

¶14We are, with' Sentiments of eileeni*

¶15Dear Sir,

¶16. Your moil Obedient Servants,

¶17CLERK & NIGHTINGALE.

¶18Providence, 21ÍI January, '1796.

¶19Nathaniel Russell, Esq.

¶20DEAR SIR,

¶21WE .wrote you yefterday a letter of recommendation ih favor of MeiTrs, Robert Murray, is Co. We hive now to requeit th'at you will endeavour to render them every afliilance in your power Alfo. that you will immediately on the receipt of this, veil-the whole of what funds you have of ours, in your hands, in rice, on the beil terms' you cam If you are not in caih, for the fates of china and nan-keens, perhaps you.may be able to raife the money from - the bank till due, or purchafe the rice upon a credit till fuch time as yen are to be i n caih for them. The truth is, we exped rice willf ¿fe} and wi want to improve the amount of what property *4199re can mufter in Cbarlejlon, vc-fted in that article at current price. Our Mr. Nightingale fs now at Newport, where it is •probable we (hall write you bn the fubjeit.

¶22We are, &'c.

¶23CLERK & NIGHTINGALE..

¶24It appeared upon the record, that William M’ Whaun, being examined as a witnefs under a commiffion, teftified, among other things, that in a .converfation with Jofeph Nightingale, the'deceafed partner, after the bills of exchange had been pro-tefted, Jofeph Nightingale declared to the deponent, that“ there <! could be no doubt but that the Defendants, Clerk and Nigbt-<l ingale,muft fee the Plaintiff, Nathaniel Riijfel, fecured.” But the Defendant applied to put off the caufe in the Court below, on account of'the abfence-of a material witnefs, and filed an affidavit ftating, that “ he believed the witnefs would teftify, “ that he was prefent at tlte converfation mentioned iij IV. M’ u Whaun’s examination, upon the requeft of Nightingale : but c.£ nothing of the import fuggefted by M.’'Whaun then paffedd’ The Court declared, that the caufe ihould 1⅞⅝ continued on this application, unlefs the Plaintiff agreed that the fa<5t alledged' in the Defendant’s affidavit,. íhould be confidered upon the trial as proved, to every purpofe, which it could effeft, were the wit-nefs prefent;. and the agreement was accordingly entered into..

¶25The general errors being affigned,.and iffue being joined on the plea in nulla ejl-erratum, the caufe was argued by Lee, the Attorney General, Howell [oí Rhode-IJIand) and Tngerfoll, for the Plaintiff in error; and by E. Tilgkman,'Dexter (of Majfa-chujktts').and Robbins [of Rhode-IJland) for the Defendant iff error.*

¶26For the Plaintiff in error,

¶27the following, points were urged., and fupported by the correfponding authoritiestft. That the-bills of exchange mentioned in the-declaration, were laid before the Jury, without a proteft for non-acceptance,, or any proof *420that they weré fo protefted-†Lov. on Bill. Vj6. Bull, N. P\ 273. 1 T.,Rep. 167. Lov. 81. 3- Bac.Abr. 613. 2 Gerd. U>ilv, Ace. 363. BulLN., P. 270. Lov. 81. 76.7. 10 Stat. at Large, p. ' 1,1 CY. at L. 106. 5 Burr. 2671. 2. 8- Mod. 80, 1 131 .-Kid. 137. 140. 1⅜ 2 T. Rep. 713.

¶282nd. Thátthe Comí below,gave ¡C in chargeto the Jury, that the letters written by Cierk and Nightingale, amounted to a guarantee of any engagement, into which Robert Murray & Co. might enter with the Plaintiff: whereas the letters did not import fuch a guarantee; there was no other written evidence of it before the Jury; and a collateral undertaking to pay the debt of another, muff be* in writing agreeably to the Enslifli Statute of Frauds, (29. Car. 2- c. 3.) which is in force in Rhode-ljland., Qowp. 227. For any miftake of a Judge, in his directions or decifions upon a trial, a bill of exceptions may be tendered. 3 Bl. C. 37 2. Reg. Brc. 282. 2 Injl. 287'- Even before the fta-tute of -.Frauds, if any concrait was made in writing, the writing muff be produced; and its contents could not be proved-by parol teftimony, on the general principle, that the heft evidence of which the cafe is fufceptible, muff be given. Efp. 780. ⅛. . But fince the ftatute, a promife, like the one now alledged, caiionlybe mádein writing. 3 Woodes,.\20. 1. 2. 4Bl. Com. 439. The tetters do: not contain evidence of fuch a promife. They are not in folrm,. letters of credit, which are a fpecies of bills of exchange, are always confined to money tranfaCtions,. and invariably include a dircCt and pofiti.ve undertaking to repay the money, which (ball be advanced. Bcawcs. L. M. 447. 8. Jacob’s L. D. “Letters, of credit.” Marins 8x. 2. And, it) ftib-ítánce, the letters a e nothing more than letters'of friendly introduction. The Court andarot the Jury are, to confirme all. deeds-.and written inílruments. I T. Rep. 172. If when an opinion .is declared of the folveircy of their frierjds, there had been any deception, an aCtion in the nature of deceit would lie; 3 T. Rep. 51. Peake’, s N. P. 2,26.; but there is no fuch imputa-*421Vion here, and the words do not import a promife. i Fin. Abr. 261. I Roll. Abr. 6 Noy. II. 2 Com. Rep. 55⅜. Cafe 237 Nor is there any equity againfl: the Plaintiff in error; for, the obligation of a furety.is always ftricfly confirmed according to the letter of his engagement. 2 T. Rep. 266. 366. Telv. 40.1. Peake’s N. P. 226. Efp. Rep. 290. Befides, notice ought, to have been given by Ruffel to Clerk and Nightingale, if he made any advances op account of the letters; and the mere finding of the ajfumpfit will not let in a prefumption that fuch a notice was given. Marius 85. Efp. 290. 442.. The fiifi: Count isa fpecial Count, and mult be proved as it is laid; Doug. 24. But as thofe letters would apply as well to any other fpeculation, as to.the indorfementof the bills of exchange, the fpecial Connt is no notice of the contrail given in evidence.* The Plaintiff ftrould have Hated in the declaration all the inducements, ihould have fet forth the letters, ihould have averred, that R.uffe'l was the agent of Clerk and Nightingale, and that in corifideration of their requeflr, the bills had been indorfed. But the declaration does not even aver, that they ever made the requeflr, in con-fideration of which the bills were indorfed, Doug., 659.

¶293d. That the promife ¿Hedged to be made in the letters of Clerk and Nightingale, ought not to have been explained by„ parol teflrlmor.y: for fuch teftimony is not admifilbleto explain a deed, or any written inftrument.* 2 Bl. Rep. 1249.1 Efp. 780. ^ Wil. 275. Ca. temp. Talb. 240. 3 T. Rep. 474. 6 T. Rep. 671. Doug. 24: 2 Roll' Abr. 27b- X Aik. 13. Poiv. Cont. 277. 290. New Annual Regi/ler 1795. Day vs. Barker et al. Poiv. Cont. 373. 1 P. Won. 618.. Poiv. Mart. 61. Pow. Cont. 431. 2 Atb 384. x Br. Ch- 90. Gilb, L. of E. 5. 6. ri2. 3 Woodes. 327. 8. ■X Br. Ch. 54. 93. 4. 2 BL Rep. X249. 1250. 1 71 Rep. 180. I’ 2. Bull. N. P. 269. 280. Telv. 40. 2 Ve%. 56. 232.

¶30Fop the .Defendant in error,

¶31it was anfwered,—lit. That there was no neceffity to produce, or to prove, á protefl: for nonacceptance of the bills of exchange. 3 Dali. Rep.'pfg,, 344.

¶322nd. That even admitting the letters oí Clerk ⅛* Nigbtin-*422gale to be part of the record (which, however, was conteftedj the deciiion of the court below was right; for, on a juft con-, ftrudtion of their contents, they import a promife, or guarantee; and the téVms of the letters ought to be taken moft ftrong-1 ly againft the writer. \ Bac. Sr. 168. 2 T. Rep. 366.

¶333d. That the parol -evidence at the trial was properly admitted. The bill of exceptions ftates,- that the evidence pafled to .the jury without, exception, the counfel only objs&ing, after-wards, to its applicability. Where objectionable evidence is given, and not objected to, but admitted by the Defendant's-counfel, it is no ground for a bill of exceptions. The applicability of the evidence to the letters, was a matter of faCfc for the jury, not the court, to determine; and on that point the court laid nothing, though they were of opinion, that the written-pron/ife might be explained by parol teftimony. What the teftimony was, do.es not appear: *nor does it appear that the *423Court was Qf opinion, that the promife might be explained by 'the parol teftimony, fpecifically, wbofe applicability the coun-iel denied, though the Jury have found that it did apply. 3 Salk. 373* Bull. N. P. 317. Where the parol teftimony was given, without objection, how could the court interfere? It muft operate with the Jury, and the party conferred that it ihould operate, by allowing that it ihould be delivered, without objeftion. it does not appear, indeed, that the ftatute of frauds was infilled on; and, certainly, it is not neceflary to ftate a written promife in the declaration. 1 T. Rep. 451. Bull. N. P. 279. 2 Jones 158- Nor will the Court apply the ftatute to the cafe, if the party does not. 'Peake 15. But even where the ftatute has been pleaded, parol teftimony has been attended to, in explanation of written contrails. Skin. 142. ¾. 2. Vent. 361. Efp. 78b. If, however,, the conftruction of the letters is correit, on the part of the Defendant in error, the bare declaration of the Court below, that parol teftimony might explain them, will not invalidate his right of recovery; and this Court will not reverfe a judgment rendered upon con-cl ulive 'evidence, appearing on the record, though improper evidence may afterwards have been admitted.' The general rule is, that parol teftimony- is admiffible to explain, though not to contradi^, a writing. Thus, it has been admitted, in confiftence with the' writing, to ihew a confideration other

¶34*424. than that, which the,deed itfelf.exprefled; 3. T. Rep. 474.. tS expliiin a certifieateiif a Pauper’s fettlement; 7. 1. Rep. 609. 2. Bt. Repi 1250. to ihew whether a cellar was comprehended within a leafe; I. T. Rep. 70i. to explains Will; 2. Fez., 216. and to prove a miftake in an agreement 1 Fez. 456. It has been admitted to ihew declarations at, and after, the writing; 1 Cha. Ca: i8o. 1 DalL Rep. 193-; 426. 1 Átk. 448. ⅞ DalL Rep. tji. 173. 196, to afcertain a fad under a Will; ⅜ Dali: Rep., jo. to rebut an equity; to prove legacies augmented, not repealed; 1 Bró. Ch.,448. 2. Br. Ch. 521. to prove the advancement of a fum of money to be an ademption of a legacy; 2 Jtk: 48. 3 Jtk. 77. 8- 2 Bra. Ch. 165. 519. SO. 21. 2 Fez. 28- and to prove the intention of the father,as-to the mode of education, on a devife of guardianfhip. 2 Fez. 56. It is admitted in cafes of refúlting trulls ; and conllantly in mercantile contrails. 2 Fez. 33Í. in fine, the llatute fpeaks, not only of the contrail being in writing, but of forne note or memorandum of the contrail; and, therefore, any memorandum. in writing of the intent of the parties (fuch as the letters in queftion) will ferve to take the cafe out of the llatute.