Opinion
11-01-1817
Arnold v. Hickman
Call for the appellant, Wickham contra.
[Syllabus Material]
This was an action of assumpsit brought by Adam Hickman, against George Arnold, and James Arnold, in the County Court of Harrison. The declaration contained sundry general Counts, for money had and received & c.; also a special Count upon an assignment to the plaintiff by the defendants, " sealed with their seals," of part of a judgment, of the same County Court, in their favour, against Edward and John Jacksons, which judgment was afterwards reversed by the Superior Court of law, " whereby the said sum of money and interest could not, nor could any part thereof, ever be had, collected or received, by the said Adam, or to his use, by virtue of the said judgment." --James Arnold pleaded separately, non assumpsit; and a Writ of Enquiry of damages was awarded against George Arnold; whereupon, a Jury being impanelled, the defendant James demurred to the evidence, the whole of which on both sides was set forth in the demurrer; consisting of, 1st, the record of a Judgment obtained by the plaintiff Adam Hickman assignee of Isaac Lefever against George Arnold, and several Writs of Ca. sa. thereupon, by virtue of one of which the latter was taken in execution, and confined in the prison bounds; --2. The record of the judgment in favour of James and George Arnolds against John and Edward Jacksons, and of the reversal thereof by the Superior Court; --3. The assignment by the said George and James, in the following words: " Harrison County, to wit, March 20th 1813. For valuable consideration to us in hand paid, we authorize the Clerk of Harrison county to endorse as much of the Judgment, obtained by James and George Arnold at the March Term 1813, against Edward Jackson and John Jackson, as will pay eight hundred dollars, with interest from the date, to Adam Hickman jr., and that out of the first money that can or may be collected from said judgment. Given under our hands and seals this day above written; " signed, sealed, and attested by three witnesses, two of whom proved its execution: --4. parol evidence, proving that the said assignment was made to Adam Hickman the plaintiff, in consideration of his releasing George Arnold from the prison bounds, (for whom James Arnold was one of the sureties,) and also discharging the said George from some other claims he had against him; --that, at the time of the assignment, James Arnold was intoxicated; but whether to such degree as to render him incapable of transacting business, appears doubtful; --that, afterwards, " when he was not very much intoxicated, but in a condition to do business," he declared himself satisfied with what he had done, that the transfer was good, and that Hickman would get his money: --that, before, and also at the time of, executing the instrument of assignment, James Arnold repeatedly declared his unwillingness to make himself liable; that he would sign it, if it would not have that effect; " that he did not intend to be liable on the assignment, but only to give George the right to the judgment to the extent mentioned." The Jury found a verdict for the plaintiff, subject to the Court's opinion upon the demurrer, which being argued, judgment was pronounced according to the verdict; and that judgment being affirmed by the Superior Court, the defendant James appealed to this Court.
Call for the appellant, to shew that a deed executed by a drunken man is void, quoted Buller's N. P. 172, citing Cole v. Robins, in which it was decided that intoxication may be given in evidence on the plea of non est factum; also Reynolds v. Waller, 1 Wash. (VA) 164, and Wigglesworth v. Steers, 1 H. & M. 70. He contended that James Arnold was incapable of business when he executed the assignment, and never meant to make himself personally liable for the judgment.
Wickham contra. --The argument that James Arnold was intoxicated, would have been proper before the jury; but this question was wrested from them by the Demurrer to the evidence. Is it competent to a man to do this, where the evidence is doubtful and contradictory? The Court is not the proper tribunal to weigh the testimony. A party demurring to Evidence, must admit every inference that may be drawn from it by the Jury; -- that is, the testimony must be taken most strongly against the party demurring.
Harrison v. Brock, 1 Munf. 22.
Stephens v. White, 2 Wash. (VA) 210.
The testimony is contradictory as to James Arnold's drunkenness. --Persons addicted to intoxication are not a privileged class. --He obtained the benefit of the contract on his side; for his brother was discharged from custody. --Intoxication is no plea, unless the party was so drunk, that, although bodily present, he was mentally absent.
Call in reply. --No conclusion can be allowed from the evidence demurred to, but such as fairly may be drawn. There is no contrariety in the testimony as to the fact of intoxication.
Some other objections occur to the claim of the appellee.
1. The reversal of the judgment against the Jacksons, may itself be reversed. A full Court here, has awarded a Supersedeas to the Judgment of the Superior Court.
2. Assumpsit did not lie in this case, but Covenant or Debt; the contract being under seal.
Wickham. The decision which reversed the judgment of the County Court was sufficient to authorise this action, whether such reversal was right or wrong.
2. The sealed instrument of assignment was not the ground of the action, but only inducement thereto.
OPINION
Roane Judge.
The Court affirms the judgment of the Superior Court affirming that of the County Court, on this ground; --that the invalidity of the judgment agreed to be assigned, does not appear to have been in contemplation of the appellant at the time of the contract, but that all his objections to engaging in that contract had relation only to the insolvency of the Jacksons; --and on the further ground, that his assent to the contract, thus understood, was given when he was not disabled, from contracting, by intoxication or otherwise.