[NO NUMBER IN ORIGINAL]
SUPREME COURT OF VIRGINIA
24 Va. 458; 1825 Va. LEXIS 29; 3 Rand. 458
October 17, 1825
PRIOR HISTORY: [**1] This was an appeal from the Superior Court of Fluvanna county.
Parker and wife, the latter of whom was administratrix of Bruce, deceased, brought an action on the case, against Pasteur, to recover the value of some trees, which (the declaration alledges) Bruce, in his lifetime, had sold to Anderson, through his agent, Foster, and for which the defendant had made himself liable, by a letter in the following terms:
Mr. Reuben Bruce.
The bearer, Mr. Foster, goes down to your house, with a view to contract with you for the purchase of a parcel of trees. Any bargain which Mr. Foster may make with you upon this score, you may consider me as bound to see you paid. He also informs me, that it is probable you may haul some of them to the river. If you do so, I will pay you the cash upon his order, at the end of each week, or oftener, if required.
I am, sir, your obedient servant.
Fluvanna C. House, July 10, 1816.
The declaration alledges, that in consideration of the said letter, the plaintiffs’ intestate, on the credit of the letter, sold to a certain Leroy Anderson, by his agent Foster, a parcel of timber trees, [**2] (stating their number and value) and also did hauling to the value of $ 3 60 cts.; amounting in all to $ 128 10 cts. The plaintiffs aver that their intestate in his life-time, and they, since his death, have never received of Leroy Anderson, the said sum of money; by which the defendant became bound to pay the same; but that he had altogether failed to do so, &c.
The defendant pleaded non assumpsit, and issue was joined.
The jury found a verdict for the plaintiffs, and gave them damages to the amount of $ 116 10 cts. with interest, &c.
At the trial of the cause, the defendant introduced a note or writing, signed by Samuel Foster, purporting to be an account of timber cut under his directions at Mrs. Bruce’s, and a witness to prove Foster’s hand-writing; and the letter of the defendant, which has been before recited; which testimony being objected to by the defendant’s counsel, the objections were overruled, and the evidence permitted to go to the jury. The defendant excepted.
A point of law was reserved for the opinion of the Court, by consent of parties, viz: whether the plaintiffs, to maintain their action against the defendant, are or are not bound to prove a [**3] demand made of Leroy Anderson, and refusal on his part to pay the amount demanded by this action. The Court decided this question in favor of the plaintiffs.
Judgment was accordingly given for the plaintiffs, and the defendant appealed.
DISPOSITION: Judgment reversed and cause remanded.
CORE TERMS: declaration, collateral promise, notice, cause of action, omission, reserved, refusal to pay, shewing, cured
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COUNSEL: Forbes, for the appellant, made the following objections:
- The declaration does not aver notice to Pasteur, either of compliance with his letter missive, or of demand made upon the principal debtor.
- There is no averment of request, either general or special, as to Pasteur himself.
- That the declaration did not alledge matter sufficient to maintain the action against Pasteur.
- That the proofs did not correspond with, or support, the allegations.
- That evidence was allowed to go to the jury, which ought not to have been so allowed.
In support of these positions, he cited, Forth v. Staunton, 1 Saund. 211, and note 2; 1 Chitty 319, [**5] 324, 325; 2 Chitty, 87; Birks v. Tippet, 2 Saund. 32; Bach v. Owen, 5 T. R. 409; King v. E. J. Hollond, 5 T. R. 409; Wallis v. Scott, 1 Strange, 89; Harris ex’r. &c. v. Ferrand, Hardress, 36, 42; Palmer v. Knight, 3 Cro. 385.
No Counsel, for the appellees.
JUDGES: Judge Coalter, delivered the opinion of the Court. *
* The President, absent.
OPINION: [*460] The Court is of opinion, that although it is not very formally or explicitly set out, yet the declaration in this case must be considered as substantially charging an undertaking by the plaintiff in error, for a debt about to be contracted by Leroy Anderson, through his agent, Samuel Foster; and, that although the letter missive, set out in the declaration, might bear the construction contended for, to wit: that the credit was given to Samuel Foster individually, yet that being matter of parol, was susceptible of explanation by evidence, so as to verify the charge in the declaration. The Court is more inclined to this construction, because neither in the bill of exceptions, nor in the point reserved for the opinion of the Court, does it at all appear, but rather the reverse, that the defendants in error sought[**6] to charge the plaintiff with a contract by Anderson, [*461] when the credit was in fact given to Foster on his own account. Nor can it well be supposed, that the plaintiff would have submitted, without opposition, or the Court have adjudged him liable, to the contract of one for whom he never became bound. Had the declaration set out such a case, thereby shewing, not an imperfect or defective cause of action, but one clearly bad, and which could not have been made good, as a just and lawful claim, by evidence on the trial, without proof of a cause of action not only variant from, but contradictory of, that stated in the declaration, then the question, (an important one indeed,) would have arisen, whether, since the late statute of Jeofails, judgment ought to be entered in such a case.
The Court is further of opinion, that the declaration would have been bad, on general demurrer, for want of an averment of notice of the quantity and value of the timber sold and delivered, and perhaps, also, for want of the averment of notice of a failure in Anderson to pay; because the plaintiff could not know, in the first case, what to pay, nor in the second, whether it was his duty to pay, [**7] without such information. But these must be considered, though omissions of matters of substance, necessary to be proved on the trial, as now cured by that statute. For, the Court is further of opinion, that the point reserved for the decision of the Court, does not withdraw these omissions from the operation of the statute. They must be considered, not only under that, as having been proved, but because the point reserved only alledges a failure to prove a demand on Anderson, and his refusal to pay.
The Court is further of opinion, that a demand of Anderson, and his refusal to pay, was not such matter of substance as must be proved on the trial: that Anderson, the debtor, was bound to seek his creditor and pay him; and that on his failure to do so, and notice thereof, and of the amount due, to his guarantee, nothing more was necessary to support the action against him.
[*462] As to the exceptions, the Court is of opinion, that the statement or account, made out in writing by Foster, of the number and value of the trees cut, under his directions, and set out in the bill of exceptions, was not lawful evidence to go to the jury, as proof of the facts contained in that statement. [**8]
The Court is therefore of opinion, that the Superior Court erred in permitting that paper to go in evidence to the jury. The judgment must be reversed, with costs, for this error, and the cause remanded for a new trial, in which such evidence is not to be admitted.
Source: Rivers Lelong