Opinion
June Term, 1828.
From Beaufort.
Goods were sold to be paid for in notes, the vendee agreeing to take them back if not good. It was held, (1) That the insolvency of the payers authorized the vendor to return them immediately, and that upon tender and refusal he was remitted to his contract for goods sold. (2) That a justice of the peace had jurisdiction, notwithstanding the guarantee. (3) That the tender was good, although the vendor had parted with the notes, and got possession of them solely for the purpose of making the tender, under an engagement to return them again.
THIS was a warrant in which "the sum of $25 due by account to his damage $10" was claimed by the plaintiff.
Hogg for the defendant.
Gaston contra.
On the trial it appeared that one Bishop, as agent for the plaintiff, sold to the defendant a rifle for $25, who paid for it in a note made by John Warner, Joseph Warner, and Anthony Oneal, payable to one Farris, and also in a judgment against one Robert McKay, and agreed to take them back in case they could not be collected, and either return the rifle or pay the plaintiff $25. It was proved that at the time of the bargain both the Warners were dead, and their estates insolvent; that Oneal had moved away, and had not been heard of for some years, and that McKay was entirely insolvent. One Carrow proved a tender of the notes and judgment by the plaintiff to the defendant, before the warrant was issued, when (392) the defendant refused to take them, affirming that he had dealt with Bishop, and had nothing to say to the plaintiff. Another witness, one Colson, proved that the plaintiff had passed the judgment against McKay to him; that it was in his possession the day the tender was made, and that the plaintiff, on that day, applied to him for it, and upon receiving it gave him an acknowledgment binding himself to return it to him.
His Honor, Judge Donnell, charged the jury that in order to entitle the plaintiff to recover he must either demand payment of the parties to the note and judgment or show a reasonable cause to excuse it, and that he must also prove a tender of the notes and judgment to the defendant. His Honor informed the jury that the death or insolvency of the parties to the note and judgment was a sufficient reason for not applying to them, and that if they believed the witness Carrow, a sufficient tender in law had been made by the plaintiff, and it was a matter of indifference in what relation the plaintiff stood to the witness Colson, or what were his liabilities to him, provided he had the note and judgment ready to deliver to the defendant if he would accept them.
A verdict was returned for the plaintiff, and the counsel for the defendant moved for a new trial on the ground of misdirection; which being refused, a motion was then made in arrest of judgment, the subject-matter of the suit not being within the jurisdiction of a single justice of the peace; which being refused, and judgment rendered upon the verdict, the defendant appealed.
The warrant in this case states a demand which in amount is within the jurisdiction of a magistrate, and this ought to appear in every case; but if upon the evidence the subject-matter is shown to be without his jurisdiction the objection may be availed of at any time. The objections raised to the plaintiff's recovery are that his action for the sale of the rifle is extinguished and his remedy is on the undertaking to take back the notes. I apprehend the rule to be that where a particular mode of payment is agreed on, which is not complied with, the plaintiffs may sue on the original contract of sale, after the term of credit expired; as in the case of Brooke v. White. There goods were sold on two months credit, to be paid for by a bill at twelve months; and the goods not being paid for after the expiration of fourteen months, the vendor recovered in an action for goods sold and delivered. It was insisted in that case that the plaintiffs ought to have declared upon a special contract, for not having given the bill agreed upon; for that where anything is agreed to be done besides the mere payment of money the contract is not a sale, but a special agreement. But the Court said that if the bill be not given, he may bring an action on the special contract, because he is deprived of the particular security agreed upon; but when the whole time is expired, and no bill has been given, he may bring an action for the money which is then due. After the expiration of the period of credit it is of no use to give the bill, for the party is then entitled to receive his money. 1 N. Rep., 330. The qualified mode of payment being introduced for the benefit of the purchaser, while the contract is executory, an action must be brought on the special agreement; when it is executed, an action may be brought for the price of the goods. I understand the substance of the contract between these parties to have been that the defendant bought a rifle from the plaintiff for $25, for which he agreed to give him a note of Warner's and Oneal's originally (394) payable to Farris, together with a small judgment against McKay. These papers the defendant promised to take back if they were not good, and restore the rifle or pay the money. Whenever, therefore, the plaintiff was able to show that the papers were not good, he might tender them to the defendant, and bring an action for the money. Some cases have been cited for the defendant to establish the point of extinguishment of the action for the price of the rifle; but on a careful examination of them they all appear to me to be decided on a distinct ground. Whitlock v. Van Ness, 9 Johns., 409, presented the question whether the seller of a horse, agreeing to receive the note of a third person payable in six months for the price, and the note not being paid, can recover against the purchaser. It was decided that he could not, because the circumstances of the case show that the seller considered himself as taking the note at his own risk, and the purchaser not indorsing it or guaranteeing it, clearly declined pledging his own responsibility. The opinion given is entirely consistent with the plaintiff's right to recover on the original sale, if the note had been taken at the risk of the purchaser and had not been paid. The case of Breed v. Cooke turns on the same principles, and shows that if on the sale of the goods the vendee delivers to the vendor the promissory note of a third person, which he refuses to indorse, it is to be considered as payment, and the vendor cannot afterwards resort to the vendee, unless the note was forged, or there was fraud or misrepresentation on his part as to the solvency of the maker. 15 Johns., 241. The only question in the case was whether the note was a payment, and it being held to be so, the contract was of course at an end; no action of any kind could be brought. But if the note had not been a payment, the plaintiffs might have recovered for the property sold. The other case cited of Pierce v. Drake, 15 Johns., 475, proves only that if the vendor of goods (395) is induced to take the promissory note of a third person as payment by a fraudulent representation of the solvency of that person, the note is no satisfaction, and he may maintain an action against the purchaser for the price of the goods. If the plaintiff in this case had taken the note and judgment at his own risk, this action would not have been sustainable, for the contract then would have been extinguished by performance.
The magistrate then had jurisdiction of the claim, and the nature of the inquiries necessary to be entered into as a defense to the claim cannot oust that jurisdiction. For though it has been held, and I think rightly, that the act giving jurisdiction to the magistrates excludes cases which sound in damages for the breach of a special agreement, yet if they have jurisdiction of the principal subject of the cause it must draw after it the incidental matters of defense. A different principle would lead to the grossest injustice by giving to plaintiffs advantages which they would not have if they had brought a suit. In this view the defendant could not set off a judgment recovered in court against a debt claimed by warrant, because the justice could not take cognizance of a sum so large. Or suppose the parties had submitted all matters in dispute to arbitration, and the submission was by bond, the penalty of which exceeded the magistrate's jurisdiction: if the award had found a sum due to the defendant after crediting the plaintiff's account it would be unjust to allow the plaintiff to recover in the face of the award. On this part of the case nothing can be added to what was said by Judge Henderson in S. v. Alexander, 11 N.C. 186: "If it be admitted that the justice has jurisdiction over this case, he must of necessity have power of examining every question which would form a defense."
As to the charge of the court on the subject of diligence, it appears to me to have been highly favorable to the (396) defendant, and requiring more from the plaintiff than the circumstances of the case duly considered could warrant. The defendant agreed to take the papers back if they were not good, and as two of the parties to the note were certainly dead, and the other probably so, or had removed away — the party to the judgment insolvent as well as the parties to the note when it was given — it would have been sufficient to have ascertained these facts by a proper inquiry, and then to have returned the papers in a much shorter time than the plaintiff took. No injury or loss could arise to the defendant by the act of the plaintiff, for the papers were of no value when he received them.
In relation to that part of the charge which is connected with the alleged tender, and the law arising from Carrow's evidence, I think it was correct, since the defendant disavowed having anything to do with the plaintiff, when asked to take back the papers. The case of Read v. Goldring, 2 M. and S., 85, is much in point. Nor can I perceive any incorrectness in the tender of the judgment if made, and this the jury have decided upon, for it was authorized by Colson delivering it to the plaintiffs. I am of opinion that the judgment should be affirmed.
PER CURIAM. Judgment affirmed.
Approved: Adcock v. Fleming, 19 N.C. 227.
(397)