Boyd v. Townsend — 4 Hill & Den. 183

Majority

p. 183

Boyd & Boyd vs. Townsend and others.

Headnote

In November, 1838, a contract was entered into between B. of the-one part and T. and D. of the other, by which B. agreed to accept and pay drafts drawn by T. to an amount not exceeding $10,000; in consideration whereof, T. and D. agreed to deliver to B. 2000 barrels of flour by the 15th of June, 1839, to be sold for the payment of the drafts, and if the sum received from sales of the flour fell short of what was sufficient to meet the drafts, &c., T. and D. were to pay the deficiency. Held, that drafts drawn by T. and made payable after the 15th of June, 1839, were not within the contract.

Quere, whether the contract embraced any drafts save such as were drawn payable at sight.

The rule that a plaintiff who proves all that is laid in his declaration ought not to

• be nonsuited even though he fail to make out a cause of action, applies only to cases where the declaration is so defective that a verdict for the plaintiff on any part of it could not be sustained. Semble.

Where issue was taken upon a declaration alleging matters sufficient to make out a right of action, along with others wholly insufficient, and, at the trial, the plaintiff jailed in sustaining that part of his declaration which was good ; held, though he proved all the rest, he should be nonsuited.

Assumpsit, tried at the Seneca circuit, in May, 1842, before Moseley, C. Judge. The declaration was special and set forth

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a written contract between the plaintiffs, (James Boyd & Co.,j and the defendants, (Edward S. Townsend, Elias Durfee and two others,) bearing date November 10th, 1838, whereby, in consideration of the plaintiffs agreeing to accept and pay the drafts of Edward S. Townsend for a sum not exceeding $10,000, and for the further consideration of one dollar &c., the defendants agreed to deliver to the plaintiffs at their store in the city of New-York, &c. 2000 barrels of superfine flour Sec, by the 15th of June then next, to be sold for the payment of said drafts ; and further, that if the sum received from sales of flour should not be sufficient to pay said drafts, with interest &e., the defendants wrould pay the balance. The declaration then alleged that various drafts were drawn on the plaintiffs by Edward S, Townsend, all of which the plaintiffs accepted and paid, viz. ; four several drafts drawn in November, 1838, one for $1500, payable June 15th 1839, and the other three for $1500, $1000, and $1000, payable respectively, June 20th, 1839, June 25th, 1839, and July 1st, 1839 ; also two others drawn in December, 1838, one for $2000 payable June 10th, 1839, and the other for $5000, payable May 21st, 1839. Some of the counts set forth only the drafts which were payable after the 15th of June, 1839, while others set forth these, together with one of those payable before. The declaration claimed the whole sum guarantied by the contract. • Plea, the general issue.

At the trial, the drawing and acceptance of the various drafts mentioned in the declaration were proved ; and circumstantial evidence was given tending to show that they were severally paid by the plaintiffs as they fell due. It further appeared by the proof adduced on the part of the plaintiffs, that they had received flour enough from the defendants to meet all the drafts payable before the 15th of Juné, 1839, but not sufficient to meet the $10,000. The circuit judge, being of opinion that drafts payable after that day were not within the contract of guaranty, nonsuited the plaintiffs, who thereupon excepted, and now moved for a new trial on a bill of exceptions.

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S. Mathews, for the plaintiffs.

JL. Worden, for the defendants.

By the Court,

It is not said, in the agreement whether the bills might be drawn on time or not; but flour enough was to be sent by the 15th of June for the payment of them. It is sufficient to say, with the circuit judge, that a construction which should allow bills on any length of time, however remote, would be unreasonable. The flour Was to be furnished for sale by the 15th of 'June, the avails to be appropriated to the payment of the bills, which we think should not, therefore, have been made payable beyond that day, as all of them were, except the $2000 and $5000 bills. The construction contended for by the plaintiffs would have entitled them to receive the flour, obtain its avails and hold these for any length of time agreed on for the bills between them and E. S. Townsend. It accords better with the course of commercial business to suppose an intent that the flour should be sold and applied presently, on or before the 15th of June. Had the parties intended it to answer bills payable afterwards, they would probably have said so.

It is, therefore, as observed by the circuit judge, unnecessary to say whether the contract did or did not confine the parties to bills payable on sight. It is sufficient that they had no right to fix the time beyond the day mentioned for the arrival of the flour.

But it is insisted that, as all the bills were set out in the declaration, and this claimed that they had been drawn within the contract, and they were all proved, the plaintiffs were at least entitled to a verdict, and the appropriate disposition of the question was by motion in arrest of judgment * not for a nonsuit. Two of the bills were averred and proved to hate been properly drawn. These alone were sufficient to support the action pro tanto. The counts, averments and proof as to the others might be rejected, and yet the action be considered as well brought. The matter

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shown in defence, or rather the defensive matter proved by the plaintiff, viz. the arrival of flour enough to pay all the defendants owed him, was the ground of nonsuit. It is the same as if he had stopped with proving an available demand, and the defendant had then shown a receipt in full or a release. Either would he a good ground of nonsuit. That the plaintiff had alleged and proved something over and above his good cause of action, but which was entirely impertinent, would form no answer to the motion.

The general rule is laid down in Safford v. Stevens, (2 Wend* 163,) on the authority of Cameron v. Reynolds, (Cowp. 403, 407.) It is, that if the plaintiff, on an issue joined upon his declaration, prove every thing contained in it, the remedy is by arrest. In the latter case, the court granted relief by arrest, though there was also good ground for a nonsuit. The reason given was, that the defendant might have demurred. But the declaration was there bad as a whole. If it be good in part, there is matter for a material issue, and a sound verdict for the plaintiff. This may be limited to the good matter. The plaintiff then has a legal cause of action on the record. Failing to make it out, the very ground of nonsuit mentioned by the chancellor in Safford v. Stevens is laid ; viz. that the proof is not sufficient to support the declaration. This rule is satisfied if the evidence be, on the whole, plainly insufficient, whether it he given in support or defeasance of the action ; whether it come from the plaintiff or defendant. (Gregory v. Mack, 3 Hill, 380 .) Take a count in slander for instance, which contains different sets of words, some actionable and some not. On an issue, the plaintiff fails to prove any actionable set; or, if he prove them all, the defendant answers by a clear accord and satisfaction; no one would deny that either the failure or the answer would present a case for nonsuit.

New trial denied»