Garlick v. James — 12 Johns. 146

Majority

p. 146

Garlick against James.

Headnote

Where the .pic“tWí person^ ” debior^nh «M)ateraí°sécnavS/Pflotoebis wh'cli^the ™ ’pawnee has Sai.elproperty, mvnefshfparepaTiíor.30 tlíe

authority the?9 thanfuto lefeeive the amount; of.tho mote from :the maker,and.net ■¿o compromise Íesísum than 3’iPceeaof°§!eie poseVot^iVih unlnfter

pledge isfor an rioa,tlíeepáwn¿ailed on tore-liempawb¿eI'e the property; aud if he is of canaot he groad, judicial-proceedings should be ¡tód, to bar his right of redemption.

THIS was an action djb the pose. The declaration contained six counts. The third ctiútit, on Avhich the plaintiff Chiefly relied, stated, in substance, that-the pMiiti% Samuel Garlick, and one Murphy, on the 29th" of January; 1803, being indebted to James C*® defendant) and McCabe, in the sum of 300 dollars, the plaintiff" pledged, paAvnéd, and delivered to the defendant, a note of Seth Garlick, for the sdni of 600 dollars, belonging to the plaintiff, to secure the debt diie tb; James & McCabe; that the defendant, afterwards, iff Í810, gave up the said note belong-inS to the plaintiff to Seth Garlick, the maker,-forj^00 dollars, in fact, Garlick Avas able to pay the Avhole amount of the note* The defendant .pleaded the general issue, and the statute of limitations. " ■

¡ , ¿ s ■ , ■ The cause was tried at the Chenango circuit, in Juñe, 1814, „ . ..... before Mr. Justice Spencer* • ~ -v;

It appeared, from a Avritten memorandum, proved to be in the 'hand-writing of the defendant, that the note of Seth Garlick was left with James 8c McCabe, for a debt, due thein by-Murphy ^ Garlick (the plaintiff)/ - -

Seth. Garlick,. who wás ¿.witness for the plaintifil produced the note for 600 dollar# dated the 1st November, 1802, payable to the plaintiff on the list November,-!8ÓÍ ; and he testified that belonged solely,to tile plaintiff ' That the witness, in 18JO, agreed Avith the defendant to give him a note signed by James Birdsall, -,as security foil the 300 dollars) arid take up his own note and the note against Murphy $ Garlick, which was, accbrd

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iiigly, done, and the defendant gave up to the witness!, his note for the 600 dollars. The note of Birdsall had since been paid to the defendant. The witness further'testified, that, at the time he took up the note of 600 dollars, he was, and still is, abundantiy able to pay the whole amount; and that he knew, at the time he made this arrangement, of the terms on which the note-had been left with James <§> M(Cdbe.

There was evidence of many other facts stated in the case, relative to points not urged on the. argument, nor decided by the court.

. It was admitted on the part of the plaintiff, that the defendant acted in good faith, in the arrangement he made with Seth Gar-lick, and obtained as much for the note as thp defendant believed he could get, under existing circumstances.

A verdict was taken for the plaintiff, by consent, subject to the opinion of the court on a case made.

H. Bleecker, for the plaintiff.

The note of Seth Garlick was left with the defendant as a pledge, and he had no light. to dispose of it. A pledge is a deposíte of goods to be redeemed on certain terms.^[7] It is not like a mortgage, which is to become an absolute interest, if not redeemed in a certain tiaie.^[8] The case of M‘Clean v. Walker^[9] is in point. The note was held to be a deposite or pledge, and that the property in it did not pass by the delivery, as in case of a mortgage; and the distinction laid down in Cortelyou v. Lansing,^[4] by Kent, J., , t ' ’ ’ between a pledge or pawn and a mortgage, and as to the pawnor’s right of redemption, are fully recognised. That case, too, was of a note delivered as security for a debt, and the learned judge, whose opinion is reported, lays it down as clear law, that where there is no specified time of redemption, the pawnee has no right to sell the pledge. The only power he has, is to receive the whole money from the maker of the note. If the pawnee sell the goods, trover lies.^[5] The defendant was not obliged to take any measures to collect the note. Where notes are deposited as collateral security merely, the law imposes no obligation on the holder to collect the money. An executor, though standing in a more intimate relation to his testator, has no power to release or compound a debt, for a less sum.^[6] Neither can an assignee of a bankrupt or insolvent, •without the consent of the creditors. Nor- can an attorney

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compound or release a debt for a less sum, without' an .authority, express or implied, from bis client*

This is the case of a simple pledge or pawn, and the'pawnee had no right, to sell or dispose' of the note, if at all, for less than the whole sum due on it; arid the defendant is answerable for the difference. ,

Henry, contra.

Where a pledge is of a dead chattel, it must, be returned in specie. Where it is of a thing, in itself, of no value, bút a mere evidence of debt, there the debt or money is to be returned; otherwise, the pawnee of a note could not receive the money of the maker. - •

. There is a distinction between a strict pledge and a mortgage, or an assignment of a debt. In the latter casé,/ if,the money is not paid at the day,, the mortgagee may sell, the pledge. The note was left with the defendant as collateral security. ’ If was, therefore, mortgaged or assigned.. If so, the defendant had a right to receive the' tnoney due to him, and to give up the note* .....

The first, second, fifth, arid sixth counts in the declaration,, proceed on the ground of a property in the note; arid that the defendant was bouiid -to return it in. specie. . Those counts, clearly, cannot be maintained. The oilier two .counts are founded on' the misconduct of the defendant as a bailee or pawnee. Tliey state the note to be due . and unpaid when it was delivered, in 1803 ; but it appears from-the rióte produced, .that it was,not payable until the 1st of November,, 1801., There is; so far, a variance between the allegation in those counts and the proof. '• ■

The defendant having acted with good faith, ought not to be made liable ; nor should the court, under the circumstances of the case, be inclined to favour the plaintiff. ." y

In Salk,^[7] it is. laid down, that where, goods are pawned, redeemable ;at a certain day, the pawnee, in case, of failure of payment, at the day, may sell them. And in Tucker v. Wilson,^[8] where exchequer annuities, xy ere- pledged for a debt, it xvas held that -they might be sold, after ■ notice; without: any, decree Of foreclosure of redemption. ' ' -

- An assignment of a chose in action need not be by deed.^[9] there xvas a paroi assignment or mortgage of the note- in ’this case, 'the -property passed, and no. action lies on the ^counts

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founded on the property of the plaintiff in the note. ' And if any action would lie against the defendant as an agent, there are -no counts in the declaration on that ground. An assignee of a bond or note has complete power over it, and may cancel it, or deliver it to the maker.

In Cortelyou v. Lansing, the thing pledged was a certificate of public stock, for which no action could be maintained.

Bleecker, in reply,

said, that the case was made subject to the opinion of the court. No objection was made to the evidence, nór was any variance insisted on, at the trial.

It is said this is a mortgage. But in case of a mortgage, the property is transferred, subject to the right of redemption, which is not the case here.

If a pawnee wishes to sell the thing pledged, he must call on the pawnor to redeem, in a reasonable time; and if he does not, then he may sell; or, perhaps, if there was a time specified, within which the pawnor was to redeem, and he did not, the pawnee might sell.

delivered the opinion of the court. The plaintiff and one Murphy, being indebted to James & M‘Cabe, on a balance of account for merchandise, the plaintiff left with the defendant, as collateral security, a note drawn by Seth Garlick to him, for 600 dollars, dated the 1st of November, 1802. Some time in the year 1810, the defendant gave up the note to Seth Garlick for 300 dollars ; and this suit is brought to recover the difference between the amount of the note, and balance of accounts due to James <§• M‘Cabe.

That the note thus deposited with the defendant is to be considered and treated as a pledge, cannot admit of a doubt. It was delivered, with a right to detain it as collateral security, for the balance due James <§* M‘Cabe. But the legal property did not pass. The general ownership remained with the plaintiff and the defendant only acquired a special property therein; and if so, he has clearly exceeded his authority, in disposing of it as he has done.

In the very able and learned examination of the rights and duties of a pawnee, in the case of Cortelyou v. Lansing, (2 Caines’ Cases in Error, 201.) most of the law on the subject of pledges has been collected. And I believe it may be safely

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affirmed, that no páse is. 69 be found, where the deposite , was for aa indefinite timé, as it was in the' case, before us, thattlie sale of disposition of the pledge by the pawnee, withVout"first . calling' iipoA the pawnór. to redeem^, has been held good. It may be said.here,-as was said in that .case, that it is unnecessary to decide in what manner this call is to be made, Or how the pledge is to be disposed, of: in case of tlie pawnor’s default to redeem; for in .this'case the pawnor was not called upon, in any manner Whatever, to redeem. It was urged, on the argument, that this' cquld not he done, because the plaintiff had absconded. If fiotihe to redeem could not have been given personally to the plaintiff, the disposition of the pledge; should have been' authorized and sanctioned by judicial pro*

. ‘ The authority of the defendant, w:ith respect to the note, could extend no further than to receiving the money- due upon it, without first calling Upon-the plaintiff, in some way, to. re-' deem. . The money, When received, Would be a. substitute for the note, and to be held upon the saíne*terms, and subject to' the same rights-and duties as the noté. And'if the "defendant undertook -to compromise.with the drawer of tlie nóte, aiidreceived a Jess sum than was due, he did it at his peril, as he acted without authority.-, ■■■■•'.

Althqughlt is admittedj iii; the case,; .that the defendant actéd in good faith, it is diffibiilt to discover the reason Of nis making:; the sacrifice he did, in accepting of less than one half the sum due upon the note;; for it is in proof, that the settlement was made ■ with ¡Seth: Gafliek, personally,, and that he was, at the7 time, abundantly able to pay the full amount of the note. It was urgedj on the part Of the defendant, that the plaintiff might still call upon Seth Gaflltk for. the balance, due .upon the note, as the. payment made by him being.for a less sum than was due, it would not operate ás. a discharge of the note. Admitting, this to be cOfrectj .it will not exonerate, the defendant, if be . • lias so.disposed of the pledge as to make himself responsible.. A party may have, two remedies for an injury, and may elect which to pursue..

In whatever light,: therefore, the. base is viewed,- the plaintiff is entitled-to recover, and .must have judgment for 525 dollars, being the difference between the amount of the note and

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the balance of account due from Murphy & Garlick to James & M‘Cabe, according to the stipulation of the parties. Several other questions would appear to arise out of the case as presented to the court, but they were abandoned on the arguznent.

Judgment for the plaintiff.