Smith v. Smith — 2 Johns. 235

Majority

p. 235

Smith, administrator of Smith, against Smith.

Headnote

A residing1 in Rhode Island, mlssor^note dated in Massachusetts, to b, residing in ^ích be'pro mised to pay !n™ertahiUaclS atnioe shillings per acre. Aaftar-charge under act of the removed into Yo^Bdied* and A admitted to his re-presentares t!iat he could the land, and sett™ the note. In an ac-by'timad?*11 “j>“«tra(°rs A formoney len* a°<l «*■ vanced to him, and mo-ouf, &c!lti\he life time of the intestate, was held, ^^admissa-ble evidence under the money counts, and connected with the acknowledgment, sufficient evidence of the con

This was an action of assumpsit. The declaration contained two counts; for money lent, and for money paid, laid out and expended, for the use of the defendant, : , ....... -nit i •' by the • intestate m his life-time, at mendon, to wit, at HerTcemer, in the county of HerTcemer. The defendant pleaded non-assumpsit, and the statute of limitations, and also gave notice, that he should offer in evidence at the trial, under the first plea, the discharge of the defendant x ® from all his debts, under an act of insolvency of the general assembly of Rhode-Island, the 27th January, 1797.

The cause was tried before Mr. Justice Spencer, at the HerTcemer circuit, the 27th June, 1806, when a verdict was taken, subject to the opinion of the court, on a case containing the following facts:

On the trial the plaintiff produced in evidence a note, signed by the defendant, and admitted by him, in the fol- , . , lowing words :

“ I, for value received, promise to pay Cabin Smith, or order, forty pounds, silver money, to be paid in lands at nine shillings per acre, in the township oí Franconia, in the state of New-Hampshire ; said Smith is to have his choice in any one lot that I purchased of David Thayer, and to have a good warrantee deed of said land when requested, the same to be on interest till paid. Mendon, June 13,1788.”

A witness foi* the plaintiff testified, that in the month of June, 1804, he called on the defendant, in behalf of

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sidcration; that the discharge under the act of the legislature of Rhode-Island,was no bar to an action brought here on a note made in the state of Massachusetts.

one Adams, to whom letters of administration on the estate of the intestate had been granted, in the state of Massachusetts, before the present administration Was granted; that he showed the above-mentioned note to the defendant, who acknowledged it to be a just debt, and that he would see the plaintiff soon, and settle it with him. The defendant also said, that he had been deceived by Thayer, of whom he purchased the land mentioned in the note; that he supposed Thayer had a title to the lands, but he had since discovered that he had no title, and that he was now unable to convey the land as mentioned in the note.

Calvin Smith, the intestate,

lived. in Mendon, in the state of Massachusetts, in 1788, and continued there till his death. The defendant formerly resided in the same place ; and the witness for the plaintiff thought the defendant did not change his residence until after the year 1788; but the defendant’s witness testified, that he removed into Rhode-Island about twenty years ago, where he resided about ten years, when he removed into the state of New-York.

The discharge of the defendant under the act of the legislature of Rhode-Island, the 27th January, 1797, was proved.

Ford, for the plaintiff.

1. Where there is a failure of the consideration, the party may waive the special contract, and bring his action of assumpsit to recover back the money paid.^[15] Before the statute of Anne, it was the invariable practice to give promissory notes and bills of exchange in evidence, under the general counts of inde-bitatus assumpsit for money lent, &c.^[16] The statute of Anne did not alter the common law, but gave an additional remedy. The note is prima facie evidence of so much money lent or paid. Admitting the note not to be sufficient evidence to support the money counts, yet

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when connected with the parol evidence of an acknowledgment of the debt by the defendant, it is sufficient to enable the plaintiff to recover. In England, an unstamped note, with parol evidence of the acknowledgment of the debt, has been held sufficient, to entitle the plaintiff to recover on a- count for money lent.^[15] It may, perhaps, be objected, that, the acknowledgment by the defendant was before the present administration was granted ; but the grant of letters of administration has relation back to the time of the intestate’s death.^[16]

2. It was not necessary to prove the value of the lands mentioned in the note. The note itself is prima facie evidence of the value, and the subsequent acknowledgment of the debt must remove every objection.

3. On the principle of the decision of this court, in the case of Van Raugh v. Van Arsdaln,^[17] the discharge of the defendant in Rhode-Island cannot avail here. The contract was made in Massachusetts, yvhere the parties, or one of them, at least, resided at the time. The act of Rhode-Island could operate no farther than to discharge the defendant from all debts contracted in-that state, and sued for there. If the defendant had been sued in Massachusetts, there can be no (doubt that the court there would have considered him liable on the note, notwith_ standing his discharge. This court, in conformity with the principles by which it has been governed in former cases, will adopt what they conceive to be the Jaw of Massachusetts.

But admitting the discharge to be valid, still the subsequent promise of the defendant to pay the debt, is sufficient to support the present action.^[18]

Gold, contra.

3. A note like the one in the present case; payable in land, is not evidence of any money re-eeived by the defendant. It is not a promisory note, within the statute, nor can it be declared on as such.^[14] The plaintiff might declare on it as a special contract, . • ' . . but it would be necessary te aver the consideration, and

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prove it.^[9] It ivas so decided in this court, in the case of Lansing v. Killip.^[8] It was there held, that where the note or instruent offered in evidence, is not a note within the statute, the words value received do not imply a consideration, but it must be averred and proved/ If this note, when declared on as a special agreement, would not of itself import a consideration, it surely cannot be be resorted to as evidence of money paid or lent, or other consideration. Where a note or bill is given in evidence under a general count, the plaintiff must prove the same facts as are necessary to be stated in a special count.^[15] The mention of forty pounds in the note, does not prove that so much was received by the defendant. The price of the laud being fixed at nine shillings per acre, the sum was mentioned as necessary to determine the number of acres to be conveyed. Again, the legal measure of damage is the value of the thing at the time the contract was broken.^[16] In case of an executory contract, unless it be put an end to, either by the terms of the contract itself, or by the agreement of the parties, the party cannot waive the special contract, and recover on a general count.^[17]

2. A new promise, in order to take a case out of the statute of limitations, must be made to the plaintiff. If the promise be laid as made to the intestate, proof of a promise made to the administrator, will not support tha declaration.^[18] Counts on a promise to the intestate and to the administrator cannot be joined. But there is no evidence that Smith was dead, at the time of the conversation between the witness and the defendant, or that the witness was the agent of the plaintiff, This court does not recognize the character or acts of an administrator appointed in another state.

3. As to the discharge of the defendant by the insolvent act of Rhode-Island. No adjudged case has presented the precise question before the court. The contract was made in one state, the bankrupt’s discharge obtained in another, and its validity is to be determined

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in a third. In Van Raugh v. Van Arsdaln,^[14] the court express themselves in very guarded terras; confining their opinion to the precise case then before them, they decided only “ that the insolvent law of one state would not take away the right of a citizen of this state, to sue here, upon a contract made here, and which is binding by our law.” In Smith v. Buchanan,^[15] the court of king’s besch relied upon the fact, that the creditor was in Eng-' lan.ii and that they deny the power of a foreign state to talte a.'ay the right of an English subbject to sue upon a contract made in England. .

In Miller v. Mall,^[16] the plaintiff lived in Pennsylvania, and the defendant in Maryland, where he obtained his discharge; the original executoiy contract was made in Pennsylvania, but the money was received thereon by the defendant in Maryland. In the case of- Pedder v. Md-Masters,^[17] the court relied on the circumstance, that the plaintiff resided in England. In Potter v. Brown,^[18] both' parties resided in the United States at the time the bill was drawn on England, and the defendant obtained his discharge under the bankrupt law of this country.

In all these-cases, the courts appear to lay great stress on the circumstance that the locus fori, and the place of the plaintiff’s residence are the same; and that they were bound to protect their own subjects from the injustice and frauds of foreign tribunals. This court is now called on to go a step further, and to interfere between the citizens of other states, and to become the guardians of their rights. Again, this was an executoiy contract, and the plaintiff must have looked to its performance in Rhode-Island, where the defendant resided; and had he sought the defendant there, and broiight-his action for the non-performance, the discharge would have been a good defence.

delivered the opinion of the court.

The material questions presented by this case are, whether the note or instrument in writing-, was admissible evidence in support of the money counts the decía-

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ration; and whether the defendant’s discharge under the insolvent act in Rhodc-Islahd is a bar to the present suit.

1. It would, I think, be a sufficient answer to the first question, that no objection was made upon the trial to the competency of this evidence. Independent of this circumstance, however, the testimony, in my judgment, was admissible in support of the money counts. The note is not for the payment of money, absolutely, and therefore nota negotiable note within the statute, and to be declared upon as such. No doubt appears to have existed in England prior to the statute of Anne, that under a general indebitatus assumpsit, a promissory note might be given in evidence. It has since been held, that, the statute only gives an additional remedy, but does not take away the old one. It may not be admitted as sufficient without further proof of the consideration, (3 Burr. 1525. 2 Ld. Ray. 758. 12 Mod. 380. 3 Term, 181. 2 Wm. Black. 1271.) which, in the present case, is full and satisfactory from the defendant’s own acknowledgment. In June, 1804, when the note was presented to him for payment, he declared it was a just debt; that he owed the money, and would endeavour soon to settle it. This is also sufficient to remove all difficulty on account of the statute of limitations. (2 Wm. Black. 1271.) The defendant also declared that he had been deceived by Thayer, of whom he purchased the lands mentioned in the note— that he supposed Thayer had a title to the lands, but af-terwards found that he had not; and that he, the defendant, was unable to convey the lands agreeably to his note.

The case of Dutch v. Warren, cited and adopted as law, by Lord Mansfield, in the case of Moses & Macfarlan, (2 Burr. 1011.) is very analagous to the present.— The defendant, Warren, had executed a writing to Duidi, whereby he acknowledged to have received a sum of mo-Iiey» as the consideration for some shares in certain cop

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per mines, and containing a promise to transfer the shares as soon as the books should be opened. On failure of doing it, an action was brought, and this writing admitted as good evidence, under the count for money had and received.

2. The more important question in this case relates to the operation of the defendant’s discharge as an insolvent debtor, in the state of Rhode-Island, subsequent to giving the note in question. The contract was made in Massachusetts, the intestate being at the time a permanent resident there. Some doubt appeal’s in the case, as to the residence of the defendant, at the time he gave the note, whether it was in Massachusetts or Rhode-Island. This, however, is unimportant as it respects the result of my opinion. I am willing to admit, what is certainly most favourable to the defendant, that his residence was in Rhode-Island. Had the intestate been a citizen of this state, and the contract made here, the discharge in Rhode-Island would be no bar, within the decision of this court, in the case of Van Raugh v. Van-Arsdaln. (3 Caines, 154.) That case is conformable to what is now considered as the settled rule in England, that a discharge under a foreign bankrupt law is no bar to an action for a debt arising in England, to a creditor residing there also. (1 East, 6.) But we are called upon now to declare the effect of a discharge, upon a demand where the contract was not made here, nor the creditor a resident here. If the contract had been made in Rhode-Island, the parties both residing there, I should think we ought to apply the same rule to them here that would have been applied to them, had the prosecution been in that state.

The reasoning of all the elementary writers, and the decisions of courts of justice, have had a tendency to establish it as a general rule, that the determination of questions founded on contract, depend chiefly on the law of the place where the contract- was made. (Huberus, 2 vol. 13. 1 Tit. 3, p. 26. 3 Dal. 370 . Stra. 733, 2 Burr. 1078. Black. Rep. 234, 256. 1

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Lord Mansfield, in the case of Robinson fy Bland,{Black. Rep. 258.) says, the general rule established, ex comitate et jure gentium is, that the place where the contract is made, and not where the action is brought, is to be con-in expounding and, enforcing the contract, unless the parties have a view to its being executed elsewhere, in which case it is to be considered according to the laws of the place where the contract is to be executed. In the case of Quin v. Keefe, (2 H. Black, 553) the reasoning of the counsel, and which was adopted by the ehicfjustice, goes very far in establishing, that a bankrupt’s certificate is to operate upon a contract according to the laws of the place where the contract was made.— If this bo a correct rule, and applied to the case before us, I apprehend there can be little doubt that the defendant’s discharge will be unavailable here. If the same rule prevails in Massachusetts, as in our own courts, on this subject, the question is settled by the decision of Raugh v. Van Arsdaln; and that it does, is to be collected from the adjudications of the courts of that Slate and of the United States.

In the case of Greenough v. Emory, in the circuit court of the United Stales, for the district of Massachusetts, ( 3 Dal. 369 .) it appeared that the debt was contracted in Massachusetts, where both parties resided at the time.— defendant afterwards removed to Pennsylvania, and was discharged under the bankrupt act of that state. On his returning to Massachusetts on a visit, he was arrested for the debt, in the state court; the cause was removed to the circuit court of the United Slates, when the defendant pleaded his certificate; but it was held to be no bar to the action, The same principle has been recognized in the supreme court of Massachusetts, in the case of Proctor v. Moore, (Williams' Rep. 198.) so that we may safely conclude, that if this suit had been brought in that state, the defendant would have been held liable, notwithstanding his discharge in Rhode-Island. It appears to be pretty well settled, both in England and in our own courts, that a cessio bonorum, under the laws of the place where the debtor is domiciled, will not operate as a discharge from his creditors universally. And if so, I know no more just or equitable rule, than to apply the lex loci, where the contract was made, or was to be executed.

The defendant can have no reason to complain of the rule of damages adopted on the trial; from his own confession, he must have received from the intestate the full sum mentioned in the note, and the least he can expect, is to refund that sum with the interest, according to the laws of Massachusetts.

Judgment must, accordingly, be given for the plaintiff.

Judgment for the plaintiff.