Opinion
June 27, 1906.
Thomas H. Rothwell, for the appellants.
S.L. Wheeler and H.E. Barnard, for the respondent.
The court ruled on the trial that he should limit the plaintiff upon his claim of negligence against the defendants to what occurred after August 15, 1894, the date when the plaintiff acquired the bonds in suit. Notwithstanding this limitation which the court announced practically at the opening of the proofs, he allowed, under the defendants' objection, evidence tending to show the entire situation and history of the transactions between the plaintiff and the prior holders of the bonds and the defendants back to the time when they were first sold by the defendant W.N. Coler, Sr., to Barnard in 1881. The evidence that was admitted tended to show that the defendant W.N. Coler, Sr., guaranteed the payment of these bonds, principal and interest, not only to Barnard but to the clients to whom he might sell them, and that he would collect the principal and interest upon them without cost to Barnard or to his clients. It also appeared that the Statute of Limitations against an action upon the contract of indemnity had run, so that the plaintiff's only remedy against the defendants to recover the amount of the bonds was in this action for negligence. There was no evidence of any agreement on the part of the new members of the firm of W.N. Coler Co. to assume the obligations of the defendant W.N. Coler, Sr., in the business of W.N. Coler Co. before they were admitted to partnership, and this evidence, to say the least, must have been highly prejudicial to the defendants upon the only issue which was tried, and that is as to the negligence of the defendants after the plaintiff became the owner of the bonds. With this evidence in the case we should scrutinize the other evidence of facts and conduct subsequent to such ownership with care to see if there is anything upon which the verdict can be sustained, for it may be that the jury reasoned that the defendants ought to pay the bonds any way because of the original guaranty given by the senior member of the firm to Barnard and that they thus lost sight of the real issue for their determination.
The court charged the jury that there was no claim that the defendants were negligent as to Barnard while he owned the bonds, nor as to the plaintiff's father and the evidence of facts arising subsequent to plaintiff's ownership of the bonds is very meagre. He testified that he was in the defendants' place of business in New York, first in 1894, while the bonds were owned by his father, and talked with the defendants W.N. Coler, Sr. and Jr., about these bonds; that they said in substance, "they were pressing a suit for the bonds for collection; that they were having trouble; that in one or two courts they had succeeded, but they were carrying it up. I cannot say whether they told me that our bonds were in, but I understood from what they said that all of the bonds were in suit." He further testified that he was in New York again in 1896 and saw the defendant W.N. Coler, Jr., and that he said the bonds were included in the suit. The plaintiff also produced a letter from the defendants to him under date of May 10, 1897, in which they say: "We believe your bonds, etc., are included in the second judgment. * * * You may be assured that everything possible is being done in connection with these matters." Barnard, who was the attorney for the plaintiff and his father, was repeatedly requested by the defendants to send the bonds to Col. Hernden, their attorney in the suit upon the bonds, but these requests appear to have been ignored. The plaintiff testified on cross-examination: "I never sent those bonds to Coler Co. to be put into judgment. They were in my father's safe when I took possession of them and I put them in my own safe and kept possession of them down to the time of this trial; I have had possession of them all the time." Barnard also testified that after he had received the letters of the defendants containing such requests he did not send them either to Col. Hernden or to the defendants, and that he did not know whether he told Allen M. Moore to send them to Hernden or to the defendants.
This case is lacking in any evidence showing that defendants ever agreed to act as the plaintiff's agent in connection with the collection of these bonds. Nor is there any proof that the plaintiff ever authorized the defendants to bring suit upon his bonds in his name or otherwise. The claim is that they were negligent in not including the plaintiff's bonds in a suit which they brought on their own account and in allowing the Statute of Limitations to run upon them without taking the necessary steps to enforce collection.
The plaintiff seeks, however, to imply a duty against the present defendants in regard to the collection of his bonds because of the agreement made by W.N. Coler, Sr., with Barnard, in 1881, to collect the bonds for Barnard or his clients. When we refer to the business relations between Barnard and the defendants, following that agreement, it appears that when the coupons were in default and a request was made to send them for collection, the request was complied with and the coupons collected, and when later a request was made to send the bonds to the defendants' attorney in Texas to be sued, which was repeated several times over, the request was disregarded. The last of these requests appears to have been made in a letter from defendants to Barnard under date of March 19, 1894, in ample time to have had the bonds included in the suit. In this letter it was requested that the bonds be sent to Mr. Hernden "at the earliest possible moment if you have not already done so."
The plaintiff claims, however, that he and his assignor were misled by the repeated assurances of the defendants that the bonds were in suit and that they were included in the judgment. It is true that the defendants made such statements, but they were made upon the false assumption on their part that their request to have the bonds forwarded to the attorney in Texas had been complied with. The plaintiff and his predecessors in title knew that the request had not been heeded. The defendants did not know it until it was too late to have them included in the suit. The plaintiff and Barnard also must have known that no direction or authority was ever given to the defendants to have a suit brought upon the plaintiff's bonds. They were payable to bearer, and the defendants could not have had an action brought upon them unless they were either lawfully possessed of them or had authority from the plaintiff for that purpose. The fact that Barnard said to the defendants, in reply to one of their letters requesting that the bonds be sent, that "whatever is done in this matter I desire you to do," and that he subsequently told them substantially the same thing, is not sufficient, with the bonds withheld and with no direction or authority to sue, to authorize the defendants to commence an action upon them or to include them by an amended petition in an action already pending.
The case appears to us to be lacking in evidence showing that the defendants were negligent, and it appears affirmatively that the plaintiff and his predecessors in title were guilty of such contributory negligence as would stand in the way of a recovery by the plaintiff. For these reasons the verdict was unwarranted.
The judgment and order should be reversed and a new trial granted, with costs to the appellants to abide the event.
All concurred.
Judgment and order reversed and new trial granted, with costs to appellants to abide event.