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Reports of cases adjudged in the Supreme court of Pennsylvania, in the Eastern district [Dec. term, 1835 - Mar. term, 1841] (Volume 2) online

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be against Middleton, or the building ; in the latter there was also a
remedy against Clark. To allow C. R. Middleton's statements, to
prove that the contract was cancelled and thrown aside, was, in
effect, to permit his agency to be proved by his declaration.

2 and 3. These errors are not sustained.

Judgment reversed, and a venire de novo awarded.

Cited by Counsel, 4 Whart. 314; 8 Watts 526; 11 Harris 246; 12 Id.
219 ; Casey 245 ; 10 Id. 82 ; 10 P. F. Smith 171 ; 2 Grant 435 ; || 23 Smith
78 ; 28 Id. 155 ; 0. c. 1 W. N. C. 597 ; 7 N orris 90. ||

Cited by the Court, 3 Whart. 45 ; 7 Watts 41 ; 7 P. F. Smith 343 ; as
authority for the incompetency of an agent's declarations in his principal's
absence, to prove the agency : Grim v. Bonnell, 28 Smith 157 ; s. c. 1 W. N.
C. 597 ; as authority for their incompetency when made after the transaction
is fully ended : Huntingdon R. R. c. Decker, 1 Norris 123 ; s. c. 3 W. N. C.




Kennedy against Carpenter and Others.


1. The payee and endorser of a promissory note, who endorsed it for the
accommodation of the maker, and without any consideration between them
and who afterwards was compelled to pay the amount to the holder, cannot
recover from the maker on any of the money counts in indebitatus assump-
sit, but must sue on the note : And if more than six years have elapsed
between the time at which the note fell due and the commencement of the
action, he cannot recover, although he may have paid the amount to the
holder within six years.

2. If one of two joint payees and endorsers of a note, discounted for
the accommodation of the maker, die before the note falls due, his represen-
tatives are not liable to the holder for any part of the amount. 1

3. Where a note was made by the defendant in favor of A. and B.. and
jointly endorsed by them for the accommodation of the defendant, and the
proceeds of the note, which was discounted by a bank, went to the credit of
the defendant ; and A. died before the note became due, and his administra-
tors paid one-half of the amount to the bank, B. paying the other half, it was
held, that the administrators could not recover the amount so paid by them ;
the payment having been voluntary, and in their own wrong.

THIS was a writ of error to the District Court for the City and
*County of Philadelphia, to remove the record of an action r*oi-
of assumpsit brought in that court to June Term 1832, by *
Ann Carpenter, John Smith and George Knorr, administrators
of the goods, &c., of Conrad Carpenter, deceased, against Robert

The declaration contained five counts : The first was on a pro-
missory note made by the defendant, dated the 6th of June 1823,
for $3500, payable to Conrad Carpenter and William Overington,
at ninety days, at the Bank of Germantown, and endorsed (as
alleged), by Overington to Carpenter ; laying a promise to the
testator. The 2d count was for money had and received (viz.,
$5000), on the 8th of September 1823, by the defendant, to the
use of the intestate ; and promise to the intestate. The 3d count
was for the same sum, had arid received on the 14th of February
1828, by the defendant, to the use of the plaintiffs ; and promise
to them. The 4th count was for the same sum lent and advanced,
&c., on the 14th of February 1828, by the plaintiffs, to the use
of the defendant ; and promise to the plaintiffs. The 5th count
was for the same sum lent and advanced, &c., on the 8th *of Sep-

|| J But see Bowman . Kistler, 33 Penn. St. 106 ; Keller's Est, 1 Leg. Chron.
189; Dingman v. Amsink, 27 Smith 114; act llth April 1 848, \\ 3 and 5, P.
L. 536 Pur. Dig. (ed. 1873) 1120, pi. 6 and notes ; 1121, pi. 8 ; 826, pi. 38 ;
827, pi. 39 ; act 6th April 1830, 2 1, P. L. 277, Pur. Die. 826, pi. 34 and notes.


3;:> SUPREME COURT [Dec. Term,

[Kennedy v. Carpenter.]

tember 1823, by the intestate, to the use of the defendant ; and
promise to the intestate.

The defendant pleaded non assumpsit and payment with leave,
&c. ; non assumpsit infra sex annos ; actio non accrevit infra sex
annos; and set-off; and issues being joined on these pleas, the
case came on for trial on the 7th of October 1835, before Judge
Jones ; when the plaintiff having proved the handwriting of the
defendant to the note, gave it in evidence as follows :

"33500 Philadelphia, June 6th 1823.

Ninety days after date, I promise to pay to Conrad Carpenter
and William Overington, or order, at the Bank of Germantown,
thirty-five hundred dollars, without defalcation, for value received.

Credit the drawer,




The plaintiff then proved that the note was drawn and endorsed
for the accommodation of Kennedy, and discounted at the Bank of
Germantown. It was several times renewed ; the last renewal
being on the 6th of June 1823, for ninety days. The note became
due on the 4th of September. Carpenter, the intestate, died on the
24th of August 1823 ; consequently before the note fell due. It
remained in the hands of the bank unpaid until February 1828.
*34fil ^ n tne ^^ f tnat month, Knorr, one of the plaintiffs, *paid
-" one-half of the amount due upon it, and on the 18th, Over-
ington paid the other half. The receipt given by the cashier of the
bank to Knorr was as follows : "Received of George Knorr, act-
ing administrator to the estate of Conrad Carpenter, deceased,
$2212.16, in full of one-half of the principal and interest on a note
of Robert Kennedy for $3500, endorsed by Conrad Carpenter and
William Overington, and discounted in the Germantown Bank,
and regularly protested on the 7th of September 1828, which the
said Robert Kennedy has failed to pay, and which is in full against
the estate of Conrad Carpenter, deceased, as a surety."

The learned judge, after stating the evidence to the jury,
expressed himself in substance as follows :

' This action was commenced the 23d of May 1832. One of
the points made in this case depends upon the act of limitations.
In deciding this point, it is important to keep in view the character
of the transaction between these parties. The note was for the
accommodation of the drawer, as it appears by the evidence. The
endorsers were in effect sureties ; and as between them and the


[Kennedy . Carpenter.]

drawer, they have the rights of other sureties. They might, it is
true, have paid the note as soon as it became due, but as between
the parties, it was the duty of the drawer to have paid it. And it
was the breach of this duty on his part, that continued the liability
of the endorsers after the time of payment had elapsed. This
action is founded on an implied promise, on the part of the drawer,
to pay his endorsers what they should be ultimately obliged to pay
for him ; and the action is maintainable on this ground. The
endorsers could not sue the defendant for not paying the note, as
he was bound to do, without first having paid it themselves. Their
cause of action therefore against him did not accrue until they paid
the note, which was not till February 1828. If the jury believe
the evidence, then this is within six years of suit brought.
Another point paised by the defendant relates to the form of the
action. It is said that Mr. Knorr alone could bring this suit, and
that he must sue in his personal, not representative character. I
think that under the circumstances in evidence, the action may be
maintained by the plaintiffs in their representative character. It
would be impossible for the plaintiffs to show the ground or reason
of this payment by them to the Germantown Bank, without show-
ing the contract of their intestate. It is not like the case of the
sale of goods which came to the hands of an administrator, where
possession by him is evidence enough of his title to sell them and
recover the price. Connected with this point is another position,
viz. : that the plaintiffs must, if they can sue at all, sue on the
note. I think otherwise ; the action may be brought upon the
implied promise by the defendant to repay so much money as Car-
penter or his estate should be obliged to pay. It is also contended
that no action can be brought by the *plaintiffs jointly, r*Q47
unless the payment for which they seek to recover was '
made out of a joint fund. This proposition is involved in the
answer to the preceding. The fund from which the note was paid
is not a material inquiry in this case. The receipt taken by Mr.
Knorr from the Germantown Bank (if believed), shows the char-
acter in which he claimed to act ; and there is evidence to the same
effect. He went to the bank, and in the character of administrator
discharged a liability of his intestate. He had a right to say that
he would act in that character and not personally. A party pay-
ing money, has the right not only to direct the application of it,
but also to say in what character he pays it. His paying it in the
character of administrator, repudiates the idea that he was the pur-
chaser of the note for his own purposes. It is also contended in
this case, that there is no evidence of the payment of money. It
is said that to maintain an action for money paid, laid out and
expended, there must be proof of the payment of money ; and pay-
ment by a check upon a fund deposited in bank is not sufficient.


347 SUPREME COURT [Dec. Term,

[Kennedy v. Carpenter.]

1 am of opinion that a payment by a check upon a bank is evidence
of a payment in money, to sustain an action for money paid.
These remarks embrace all matters of law which have been dis-

The jury found for the plaintiffs, and the defendant took a writ
of error, and assigned several errors in respect to the admission of
testimony on the trial ; which as they were only slightly pressed on
the argument, and were not noticed in the opinion of the court, are
omitted. The errors relied upon were principally in the charge
of the court.

Mr. Kennedy and Mr. Rawle, for the plaintiff in error, cited 1
Chitty's Plead. 234; 5 East 150; 2 Bos. & Pul. 424; 4 Har. &
Johns. 530 ; 13 S. & R. 442 ; 3 Bos. &. Pul. 10 ; 4 Yeates 105 ;

2 Rawle 191; 5 Id. 137; 1 P. & W. 161; 2 Id. 490; 3 Rawle
370 ; 10 S. & R. 234 ; 16 Id. 242 ; 13 Id. 443 ; 1 P. & W. 137 ;
Chitty on Bills 571 ; 2 P. & W. 25 ; 3 Rawle 388 ; 1 Watts 408 ;
2 Bay 324 ; 16 Mass. 314; 2 Term Rep. 105; 7 Id. 568 ; 7 S. &
R. 126 ; 3 P. & W. 380 ; 12 S. & R. 262 ; 5 Binn. 573 ; Chitty
on Contracts 179 ; 2 Rawle 311 ; 6 S. & R. 262 ; 10 Id. 313 ;
2 Tidd's Practice 802; 2 Williams Saunders 117, note c-, d; 8
S. & R. 402.

Mr. Miles, contra, cited 4 Term Rep. 277 ; 3 Id. 659 ; 3 East
104 ; 10 S. & R. 234; 1 P. & W. 161 ; 2 Rawle 102 ; 1 Chitty's
Plead. 207 ; 2 Bos. & Pul. 424 ; 2 Lev. 110 ; 2 Vin. Abr. 47, pi.
b. ; Com. Dig, Action, G. ; 3 S. & R. 413 ; 8 Id. 265 ; 2 Rawle
212; 1 Watts 344; 17 S. & R. 116, 250; 16 Id. 350; 5 Rawle

124; 2 Id. *280; 3 Starkie's Evid. 1385; 3 Bos. & Pul.

235; 2 Harris & Gill 305.

The opinion of the court was delivered by

KENNEDY, J. Out of the numerous errors assigned, two princi-
pal objections seem to arise against the recovery of the plaintiffs
below, either of which we think is fatal. The first is, that they are
not entitled to recover on the money counts in their declaration ;
because if they, as the administrators of Conrad Carpenter,
deceased, were bound to pay the money to the Bank of German-
town, as they did, in discharge of the note, their only remedy to be
reimbursed was by a suit upon the note itself, in the name of Wil-
liam Overington, the surviving payee; but then six years or more
having elapsed after the note became payable, before this suit was
commenced, the statute of limitations, which has been pleaded here,
would have been a bar to such action, had it been brought at the
time this was. The second is, that the plaintiff's intestate being a
joint payee in the note with William Overington. and having


[Kennedy . Carpenter.]

endorsed it jointly with him to the bank, purely for the accommoda-
tion of the maker without receiving any benefit therefrom, and
dying thereafter before it fell due, or anything was paid on it,
William Overington surviving, the intestate's estate, as well as him-
self, became thereby released, both in equity and in law, from the
payment of it.

Now as to the first objection. It is not intended to be denied
that a promissory note, for the payment of money, may be given
in evidence on the money counts, in a suit between the payee
and the maker ; for before the passage of the statute of 8 and 4
Ann, Lord Holt, in Carter v. Palmer, observes, " we will take
such a note prima facie, for evidence of money lent ;" and in
Clarke v. Martin, 2 Ld. Raym. 758, he repeats, as a reason for his
decided disapprobation of declaring upon such notes, as if they
were within the custom of merchants, " because there was so easy
a method, as to declare upon a general indebitatus assumpsit for
money lent," &e. And in Grant v. Vaughan, 3 Burr. 1525, Lord
Mansfield says, " I do not find it anywhere disputed, that an action
upon an indebitatus assumpsit generally for money lent, might be
brought on a note payable to one or order." So in Story v. Atkins,
2 Stran. 719, Chief Justice Raymond, in delivering the opinion
of the court, says, " it undoubtedly may be given in evidence on
an indebitatus assumpsit, as a paper or writing to prove the defend-
ant's receipt of so much money from the plaintiff;" for which he
cites Hard's Case, 1 Salk. 23, where it is said, debt would lie by
the payee of a bill of exchange against the drawer, because it was
evidence of the receipt of so much money received by the drawer
of the payee. He also states another thing which goes to show
that the remedy on the *note is grounded exclusively on r*q<q
the statute, but that on the money counts, is given by the "
common law, when he says that " the statute 3 and 4 Ann. only
gives an additional remedy upon promissory notes, but does not
take away the old one." And accordingly in the case of Ex parte
Mills, 2 Ves. Jr. 303, Lord Loughborough, where the note was
given for money lent, held that the payee need not declare on the
note, but might recover on a count for money lent. See also Bui.
N. P. 137, to the same effect.

But this principle, I apprehend, is only applicable when there
is privity of contract between the plaintiff and defendant, and a
money consideration has passed between them, of which the note,
being for money, is prima facie evidence ; for instance, as between
the payee and the maker, or between the endorsee and his imme-
diate endorser, but not as between the endorsee and the maker,
or the endorsee and a remote endorser. See Smith v. Kendall,
6 Term Rep. 123 ; Johnson v. Collings, 1 East 98 ; Barlow v.
Bishop, Id. 434 ; Whitehill v. Bennitt, 3 Bos. & Pull. 559 ; Houle


849 SUPREME COURT [Dec. Term,

[Kennedy r. Carpenter.]

v. Baxter, 3 East 177 ; Waynam v. Bend, 1 Campb. 175 ; Bently
r. Northouse, Mood. & Mai. 66 ; Chitty on Bills 594 (8th ed.).
There are, however, cases in which the right of the plaintiff to
recover on the money counts has been extended to the holder,
between whom and the defendant, there was no privity of contract.
In Cruger v. Armstrong, 3 Johns. Ca. 5, the Supreme Court of
New York seem to have thought that the plaintiff having become
the holder of a check, payable to W. and J. C. or bearer, which he
received, not from the defendant, but from a third person, had a
right to give it in evidence on the money counts. So also in Pierce
v. Crofts, 12 Johns. 90, it was held that the holder of a bill pay-
able to A. B. or bearer, might either, as the bearer or the endorsee
thereof, recover on a count for money had and received. Mr.
Justice Platt, in delivering the opinion of the court, after reciting
the words of their statute, which are substantially, in this respect,
the same with those of 3 and 4 Ann., declaring that notes payable
to order or bearer shall be taken and construed to be due and pay-
able as therein expressed, and shall have the same effect, and be
negotiable in like manner, as inland bills of exchange, says, "the
effect of the statute was two-fold ; first to make a promissory note
evidence per Be, of money due, so that it might be declared on like
a specialty ; and secondly, to ra&ke it negotiable." Then he observes,
" if, as all agree, such a note before the statute, was evidence of
money due from the maker to the payee, so as to support a count
for money had and received, I can see no good reason why an
assignee by endorsement or delivery, ought not to have the same
remedy. It was the object of the statute to place the assignee in
the same relation to the maker as the payee stood in before ; and
the legal operation of the transfer is, that the money, which, by
virtue of the note, was due to the payee from the maker, is now due
*3501 ^ rom l ^ e ma ^ er to tne <**Mffnee." But *may it not be well
* questioned, whether this conclusion is warranted either by
the terms of the statute, or by the practice and decisions that have
obtained under it ? For it is the note, or in other words, the iden-
tical promise contained on the face of it, which is an express
promise for the payment of money, that is made assignable by the
statute. There is certainly nothing in the terms of the statute
which goes to show that it was the intention of the legislature to
make an implied promise growing out of the consideration of the
note, or the transaction which gave being to it, or any other
promise, either expressed or implied, assignable, than that con-
tained in the note itself. Suppose, for instance, the note to have
been given for the price of goods sold and delivered by the payee
to the maker ; as between them, if the note be not paid at matur-
ity, the payee still holding it, may recover the money on a count
for goods sold and delivered ; but surely it will not be pretended,


[Kennedy v. Carpenter.]

and certainly never was heard of, that the assignee of the note in
such case, could recover upon such a count, by virtue of the
assignment of the note under the operation of the statute. But
suppose the note were given for money actually lent by the payee
to the maker, if the assignee in the case of the note given for
goods sold and delivered, cannot recover upon a count for the
sale of the goods, why shall the assignee of the note in the latter
case, be entitled to recover on a count for money lent? The
statute in its terms, does not embrace the one case more than the
other ; and though the statute does embrace and make the note
itself assignable in either case, it does not appear that it was the
design of the legislature to include the cause of action forming
the consideration of it, so as to pass it too. It is clear, therefore,
that the object of the statute could not have been, as Mr. Justice
Platt says, to place the assignee of the note in every respect, in
the same relation to the maker, as the payee stood in before ; but
merely so far as might be necessary to enable him to recover upon
the express promise contained in the note itself, and not to go
behind it upon an undertaking existing independently of it,
whether it be expressed or implied. This being the case, I take it,
that the assignee or endorsee of a note made assignable by the
statute, must declare upon the note itself, and in doing so, he must
invoke the aid of the statute to entitle him to recover of the maker,
as it is only by force thereof, that he can claim to recover at all,
in his own name.

The Supreme Court of the United States held also, in Raborg
v. Peyton, 2 Wheat. 385, that debt might be maintained by the
endorsee, against the acceptor of a bill of exchange, it being
expressed to be for value received ; and would seem to have
adopted the same notion entertained by the Supreme Court of New
York, on this subject, in Pierce v. Crofts; for Mr. Justice Story,
who delivered the opinion of the court, after showing that debt, in
such case might have been supported by the payee of the bill, had
he retained it, says, *"but in point of law, every subse- r*ori
quent holder, in respect to the acceptor of a bill, and the '
maker of a note, stands in the same predicament as the payee.
An acceptance is as much evidence of money had and received by
the acceptor to the use of such holder, and of money paid by such
holder for the use of the acceptor, as if he were the payee ;" for
which he cites Tatlock v. Harris, 3 Term Rep. 172 ; Vere v.
Lewis, Id. 184, and Grant v. Vaughan, 3 Burr. 1516. This deci-
sion of the Supreme Court of the United States appears to be
contrary to the current of the English authorities. The engage-
ment of the acceptor, though clearly a promise to pay the bill, is
but collateral, because the drawer, who created the debt first with
the payee, still remains bound for the payment of it notwithstand-



[Kennedy r. Carpenter.]

ing the acceptance of the bill by the drawee ; and therefore it is,
that the undertaking of the acceptor has been considered collateral,
which has ever been held insufficient to maintain an action of
debt. Cogan v. Greene, 1 Roll. Abr. 594 (F.) pi. 2. And accord-
ingly it has been ruled, that debt will not lie even in favor of the
payee, and much less an endorsee, I take it, where there is no
privity of contract, against the acceptor of a bill of exchange.
Anonymous, Ilardr. 485, said by Justice Rainsford, to be Milton's
case, 1 Mod. 286 ; Browne v. London, 1 Mod. 285 ; 8. c. 1 Ventr.
152 ; 1 Freem. 14 : Hard's case, 1 Salk. 23 ; Young v. Bishop, 2
Bos. & Pull. 82-3 ; Webb i>. Geddes, 1 Taunt. 540 ; Thompson v.
Morgan, 3 Campb. 101 ; Com. Dig. tit. Debt, [B.]

So far, however, as regards the remedy given by law to the
payee upon the bill or note itself, against the acceptor or maker,
the endorsee, doubtless, as Mr. Justice Story says, " stands in the
same predicament as the payee," but certainly his right was not
intended to go further. For to hold that either debt or assumpsit
may be maintained by the endorsee for money had and received to
his use by the acceptor, or for money paid by the former for the
use of the latter, would be giving him the benefit of a cause of
action not made assignable, as has been shown above by the custom
of merchants, or the statute ; and would therefore go to impugn
the rule of law that a chose in action is not assignable. Indeed
it must be admitted by all, I think, that no assignment or transfer
made of a right, consisting of a mere chose in action, whether it
be for money or other thing, without it be a bill of exchange, note
or other instrument, made negotiable by the law merchant, or the
statute, will enable the assignee to maintain a suit for or on account
of it, in his own name. It is therefore manifest, that the endorsee
can have no right of action vested in him, save that founded on the
bill or note. Since his right of action then arises out of the bill
or note and the assignment thereof, under the operation of the
custom of merchants and the statute, and not out of the trans-
action which formed the consideration of the bill or note : and
seeing the law has provided a specific and adequate remedy in his
*S"21 ^ avor ' on tne ^11 or note itself for the recovery of *the
' amount thereof, it seems but reasonable that he should be
confined to it. Besides, it is difficult to conceive how the endorsee
can be permitted to go behind the bill or note, as it were, and be
placed on the same ground on which the payee stood, without his
having been privy thereto. The acceptance of the bill may, fairly
enough, be regarded as evidence of an admission by the acceptor,
of his having received money for the use of the payee ; and upon
a count for money had and received, in an action by the payee
against him, may be admitted in evidence, to support it, there being
privity of contract between them. So the giving of a note for


[Kennedy v. Carpenter.]

the payment of money, may be considered prima facie evidence of
money lent by the payee to the maker, or money had and received
by the latter for the use of the former; and therefore, in a suit
between them, may be given in evidence, upon a count for money
lent or money had and received. But even between the original

Online LibraryPennsylvania. Supreme CourtReports of cases adjudged in the Supreme court of Pennsylvania, in the Eastern district [Dec. term, 1835 - Mar. term, 1841] (Volume 2) → online text (page 39 of 68)