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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 6) online

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for giving the second note ; and being accepted by the payee or
holder of the first note, with a full understanding of the motive and
purpose which influenced the drawer to give it, he must be con-
sidered as having agreed to give the thirty days indulgence asked
for on the first. An explicit declaration on his part, agreeing to
give this indulgence, had he made it, could not be regarded as more
satisfactory evidence of his assent in this respect, than is necessarily
implied in his acceptance of the second note. It is only upon the
ground of his having granted the indulgence of the thirty days for
the payment of the first note, that his conduct in receiving the
second can be justified ; for if he did not intend to allow or bind
hi mse lf to *grant it at the time, he intended to practice an
unwarrantabfe deception upon the drawer, which the law
not countenance or permit him, after what he has done, to
allege. Now if the agreement made after this sort, by the holder
of the first note, to grant indulgence for the payment of it to the
maker, without the consent of the endorser, and more especially an
accommodation endorser, as it appears was the case here, be bind-
ing upon him, it is perfectly clear, according to all the authorities
on the subject, that the endorser was thereby discharged from his
liability to pay it. And why is not the agreement binding upon
the holder of the note as well as the maker ? For I presume it will
not be denied that the latter was bound, and became liable to pay
in discharge of the second note, the amount of the interest which
otherwise would have accrued on the first note at the end of
thirty days. The consideration for giving the second note, that
the grant of indulgence, was clearly sufficient to support, and
make it binding. If then the agreement for indulgence was bind-
ing upon one of the parties to it, it must, according to the general
rule, be so on both. It would be very inequitable and unjust if it
were not so. The only reason given for its not being binding upon
the holder is that he could derive no possible advantage from it ;
because if he suffered the first note to lie over for the thirty days,
without any agreement to do so, the maker and the endorser would
both have been liable for the accruing interest upon it, as well
as the principal. But notwithstanding this would have been
so, yet it must be remarked, that if the first had not been paid with
its accruing interest at the end of the thirty days, but remained
unpaid afterwards, no interest could have been claimed of either the
maker or endorser of it upon the interest which had accrued there-
on at the close of the thirty days. But the holder by taking
the second note, thereby secured to himself the right of demanding



1841.] OF PENNSYLVANIA. 450

[Walters v. Swallow.]

from the maker interest on the sum mentioned therein, commencing
at the expiration of the thirty days, if it remained unpaid after that
time, until paid, which was converting the interest for the thirty
days on the first note into principal, and obtaining a right to de-
mand interest upon it afterwards if it remained in arrears ; that is,
in other words, to demand and receive interest upon interest, which
if received would have enlarged the sum that the holder would
otherwise have been entitled to. And although it would have been
but small, still it would have been an advantage or benefit to him
of some value ; and therefore was a sufficient consideration of itself
to make the agreement for indulgence binding upon him. The cir-
cumstance of the drawer's having become insolvent, so that the
agreement for indulgence is likely to produce a loss instead of a
gain to the holder, can and ought not to have any bearing upon the
question. It was for the holder to consider of that before he
entered into the arrangement that he made. But having made it he
must be deemed to have elected to take the risk of loss upon him-



self, which might happen to *arise from the maker's becom-



[*451



ing insolvent; and this he had an unquestionable right to
do. There is also another view, if it were necessary, under which
the acceptance of the second note might, perhaps, lie held sufficient
to bind the holder to forbear payment of the first for the thirty
days. If the maker of the first, instead of giving the second, had
paid the amount of the interest on the first in money for the thirty
days, it will pcr.rcely be denied that the holder after receiving it
would have been bound to have waited for the thirty days. But in
Musgrave qui tarn v. Gibbs, it was ruled, that the giving up a
second note for the payment of usurious interest on the first, was
equivalent to a payment of it in money, and the usury there-
upon was rendered complete. We therefore are of opinion that
the District Court erred in their instructions to the jury on this
question.

Now as to the second question. If, as has been shown, the
endorser became discharged by the agreement of the holder to give
time, from his liability under his endorsement of the first note, to
pay it, his subsequen^ promise to do so would not be binding upon
him, unless it can be shown that there was a sufficient consideration
for making it. It appears from the evidence that he derived no
benefit from his endorsing the note to the holder, who discounted
it, except that he received out of the proceeds arising from the
discount, payment of a debt of about one hundred and fifty dollars,
owing to him by the maker; that otherwise the note was discounted
for the benefit of the maker, who received the residue of the proceeds,
amounting to two hundred and ninety-five dollars and thirty-two
cents, and was to pay the whole amount of the note when it should
become payable. He was therefore the real debtor ; and the note



451 SUPREME COURT [March Term,

[Walters v. Swallow.]

may be considered as having been wholly discounted for his benefit
alone. It cannot then be well said, under this view of the matter,
after being discharged from all liability on his endorsement, that
the endorser was under any obligation, either legal, equitable or
moral, to pay the note ; hence his promise to pay it afterwards, if
he ever made any, must be considered purely gratuitous and without
sufficient consideration to bind him. We therefore think that the
District Court erred in their instruction to the jury on this point
also.

But if it were binding, can the defendant in error, who was the
plaintiif in the District Court, where the action was commenced and
tried, recover upon the promise ? It was not a promise made by
the endorser to revive his endorsement, or former liability under it ;
but a separate and distinct promise to pay the amount of the note.
There is therefore no pretence for claiming that the endorser can
be held liable upon his endorsement; if liable at all, it must be on
his subsequent promise. But this promise being merely verbal, is
not assignable at common law ; nor is it made so by statute ; so
that the plaintiff below, not being a party to the promise, nor the
promise made for his benefit, cannot claim to recover upon it in
*4 P >21 ^ s * ac ^ on which is brought in his own name. This last
-* question does not seem to have been raised in the court be-
low ; but being intimately connected with the second, it could not
well be passed without a notice. The judgment is therefore re-
versed ; and a venire de novo awarded.

Judgment reversed ; and a venire de novo awarded.

Cited by counsel. 4 Barr 76.

See, also, 2 Whart. 256.

|| The operation of the well-settled general rule, that an extension of time
by a valid agreement between the creditor and principal, will discharge the
indorser, can be obviated by expressly reserving all rights against the
indorser : Hagey v. Hill, 25 Smith 108. To work a discharge, the stipulated
delay must be definite: Bank . Legrand, 7 Outer. 309.

An agreement to give time is not presumed in law, from the mere accept-
ance of the debtor's note payable at a future day : Shaw v. Church, 3 Wr.
226 ; such agreement is to be proved as a fact, depending for its existence
on the understanding of the parties at the time the note is given : Ibid. ; and
see Kimmerer's Appeal, 6 Outer. 588.

To make an agreement to give time operate as a discharge of the surety,
there must have been a valid consideration : Zane v. Kennedy, 23 Smith 182 ;
Ashton v. Sproule, 11 Casey 492.

A creditor, before the maturity of the debt, received the debtor's due bill
for usurious interest, and agreed to give a year's time ; held, if the due
bill was paid after maturity, it was in legal effect, but part payment of
the overdue debt, and consequently the agreement for time, was without
consideration, and the surety for the debt not discharged : Hartman v. Dan-
ner, 24 Smith 36 ; and see Calvert . Good. 14 Norris 65. A promise to pay
the legal rate of interest, made before or after a debt becomes due, or a part
payment of an overdue note, is not a good consideration for a contract to
forbear to sue: Rumberger v. Golden, 3 Outer. 34, and cases cited. ||



1841.] OF PENNSYLVANIA. 452

[PHILADELPHIA, MAY 1, 1841.]

Quinn against Wallace and Another.

IN ERROR.

1. In replevin by a sub-lessee, for goods taken by the paramount landlord,
on a distress for rent, on the plea of no rent in arrear, a receipt for rent
given by the immediate lessee to the plaintiff, is not admissible on the part
of the plaintiff.

2. In replevin by a sub-lessee for goods taken by the paramount landlord,
on a distress for rent, on the plea of no rent in arrear, where it appears that
the defendant had previously distrained the goods of the mesne tenant for
rent arrere, and sold the same, it lies upon the defendant to show that the
distress first taken was insufficient.

3. It seems that the act of 13th of March 1772, which says that the land-
lord shall or may sell the goods distrained, is imperative, and makes it the
duty of the landlord to sell.

ERROR to the District Court for the City and County of Phila-
delphia.

*An action of replevin was brought in that court by r*4co
William Quinn against Richard Willing and William Wai- "-
lace, to which Willing avowed for rent in arrear, and Wallace made
cognisance as his bailiff. Replication, no rent in arrear.

On the trial before Stroud, J., the plaintiff gave in evidence the
following notice of the taking of the goods:

" Richard Willing ) T ,,

Landlord s warrant

Samuel Collins. J Rent due Jan'y 1st 1835. $1125.

Levy made Jan'y 8th 1835.

(Here follows an inventory of the goods distrained.)
This is made in addition to a levy made Jan'y 2d 1835, not
being sufficient.

WM. WALLACE,
Agent for R. Willing."

The plaintiff then called one David Hazard, who being affirmed,
testified that Mr. Willing, the defendant, came to the plaintiffs
shop for rent in January 1816, and wanted Quinn to pay his rent
up to that time to him, and in future to pay his rent to Saunders,
to whom Willing had leased the premises. Quinn paid up the
rent accordingly to Willing, and afterwards paid his rent to Saun-
ders as long as he continued; then he paid to Lelar, who succeeded
Saunders; and afterwards to Samuel Collins, who succeeded Lelar.
On the 7th or 8th of January 1835, Mr. Wallace made a levy on
Quinn's goods for rent due Willing of 1125. Two or three days



453 SUPREME COURT [March Term,

[Quinn v. Wallace.]

before this seizure, Quinn told Wallace he had paid his rent to
Samuel Collins. Wallace told him not to pay his rent to Collins;
and he told him he had paid it to him.

The plaintiff having first proved the same, now offered in evidence
a receipt of Samuel Collins, dated January 1st 1835, to William
Quinn, for $137.50, in full of his (Quinn's) rent, up to the 1st
January 1835; which was objected to by the defendants, and re-
jected by the court ; whereupon, the plaintiff excepted to its rejec-
tion.

The plaintiff then called Michael Carlin, who testified as follows :
" I know the plaintiff and Samuel Collins. I lived next door in
the same property. In 1835, on the 2d of January, Wallace came
down and seized on the sand in two stores, and the wood on the
wharf. There was considerable cordage up-stairs. and a large quan-
tity of boats' oars also ; all on Samuel Collins's premises. Wallace
placed Mr. Bain there as a watchman ; and he had charge of the
counting-house of Collins. I saw Wallace there two or three times
a day. Bain said he was put in- charge of the wood and sand.
Can't say whether he had charge of the oars and cordage up-stairs.
*4. r zTI i x or * 8even days after this, Wallace came to my store,
" and said he was going to levy. The sand levied on was
sold by Wallace by the load. There were 200 cords of wood on
the wharf and 80 cords in the alley ; hickory, oak and pine : hick-
ory was selling at $6.50 to $7 per cord ; oak was worth $5 to
$5.50 ; pine $4- It was a good time to sell ; wood was high. In
the alley, the pine was greatest in quantity ; two-thirds of that on
the wharf was oak; other third was hickory and pine. .1 rented
of Quinn a back room. There were 9 or LO properties belonging
to Mr. Willing; he rented all to Samuel Collins." Cross-exam-
ined. "I was in my store when Wallace came to make the first
seizure ; next to Collins's. I did not see any paper relative to
that seizure ; I don't know to whom the wood belonged ; some of
it belonged to Collins, I know ; I know that part of it was sold as
Collins's wood, at auction : 15 or 20 cords of hickory were so sold.
The sand in the store I saw sold ; there was a large quantity of it ;
it was all sold in lots to different purchasers ; the hickory and sand
were sold by Wallace. Collins was in the habit of having wood on
commission. The sand was all Collins's ; I was present at the sale
of the sand and wood ; a carter by name of Helty bought a large
quantity ; John Hansom and James Marks bought some sand, and
several others. I understood that a claim was made at the sale, by
some persons, that some of the wood was their's ; can't say who, or
how many, or for how much.

William Paul testified. "I occupied part of the property rented
of Collins. Wallace seized for rent ; he seized Collins's sand ;
there were two rooms full of building sand; I think 1000 cart loads.



1841.] OF PENNSYLVANIA. 454

[Quinn v. Wallace.]

There were also oars, a very large quantity ; ship's cordage, and
several bundles of it; these all belonged to Collins; it was all under-
stood to be his before it was seized on ; it was all in Collins's shop
and the apartments occupied by him. There was wood on the wharf
also. The sand was worth fifty cents per cart load, without hauling ;
I have bought it myself. There might have been 100 pair of oars."
Cross-examined. " I heard Wallace say he had seized on the sand ;
Collins was present then. I know the oars were seized on by Wal-
lace ; I heard him say so, and I saw the sheriffs watchman throwing
them out of the window for the sale. Collins said this sand was
his and Daniel J. Thomas, his clerk, also said so ; he bought it for
speculation."

William Quinn, a son of the plaintiff, testified. " I lived with
Collins ; was his apprentice ; I was not there at the time of the
seizure. Wallace seized on the sand and wood; the wood belonged
to different persons, principally in Jersey ; part of the wood was
Collins's : I don't know how much ; can't say how much was seized
on ; three rooms full of sand, ten feet high ; they would hold as much
as this room. Sand is generally about 50 cents per load without
hauling retail price. There were 20 or 30 coils of cordage not
seized on." *Cross-examined. " The oars and cordage I r* < cc
think were not seized on ; I helped to remove them under *-
Collins's direction ; removed all. I was not present at the sale ; the
room was filled with sand ; don't know to whom it belonged ; about
twelve feet wide ; it all belonged to Collins."

The plaintiff here closed his case.

The defendant then produced Henry Lelar, junior, a witness, who
testified as follows : " I was agent of Willing, to collect rent of this
property and receive possession. I called on Collins on the 1st of
January 1835, for a quarter's rent, and requested payment of the
amount, and possession of the property; he refused payment. I
authorized the constable to make a distress, and received from
Wallace the proceeds of sale, 88 and some cents ; that is all
that was received ; this is the paper Wallace presented to me in
settlement. Last I heard of him he was in Ohio ; I have made
inquiries of him."

The counsel for the plaintiff then requested the court to charge the
jury upon the following points, viz. :

" 1st. If the jury believe that a distress was made on goods in
possession of Collins, before a second distress could be made, it
was for the defendant to show what disposition was made of the
first."

To which the judge answered, u This is not so. The mere levy
of a distress is not satisfaction of the rent ; and the mere proof
that a distress had been made, without more, would not preclude
the landlord from making another distress. It was for the plaintiff

6 WHARTON 29



455 SUPREME COURT [March Term,

[Quinn 0. Wallace.]

to show that the rent was due when his goods were distrained; and
if he wished to use the first distress as proof of payment, it was
incumbent on him, and not on the landlord, to show what was done
with it."

" 2d. If the jury believe that a distress was made upon goods in
possession of Collins, a second distress on Quinn's goods was illegal,
unless the first was insufficient."

Answer. "A distress levied is not satisfaction ; and until the land-
lord has received satisfaction, he has a right to distrain any goods
found on the demised property. He had a right therefore to distrain
Quinn's goods unless all his rent had been paid."

" 3d. That the defendant's rent was satisfied by making a first
distress, until the disposition of it was shown by defendant's
answer."

Answer. " I have already said that the mere levy of a distress
is not satisfaction, and that it does not stand in the way of the
landlord in making a second distress ; that it was on the plaintiff
and not the defendant in the issue joined, to show that the rent was
paid, and of course the plaintiff was bound to show that the goods
first distrained had been converted into money and were sufficient
*4 r fil to *P av tne wn l e rent. If anything whatever were due,
- under this issue, your verdict should be for the defendant.
According to the paper given in evidence by the plaintiffs, it
would seem not that there were two distinct distresses, but rather
that an addition was made of Quin's goods to those of Collins then
in the hands of Wallace. Such a continuous levy might be law-
fully made. See Hutchings v. Chambers, 1 Burr. 589."

The jury found for the defendant, who took this writ of error.

The following errors were assigned :

1. Because the judge erred in rejecting the receipt of S. Collins
to the plaintiff for rent up to the first of January 1835.

2. Because the judge erred in charging that even if a distress
was made upon goods in possession of Collins, the burthen of proof
was not on the defendant to show what disposition was made of the
first, before a second distress could be made.

3. Because the judge erred in his answers to the second and third
points of the plaintiff as propounded to him.

Mr. /. Norris and Mr. D. P. Erown, for the plaintiffs in error,
cited 1 Saund. Rep. 201 (a); Cro. Eliz. 13; 2Lutw. 649; Comyn's
Land, and T. 414 ; Woodfall 334 ; Bradby on Distresses 415 ;
Hutchins v. Chambers, 1 Burr. 589; Act of March 1772 ; 2 Saund.
Rep. 47 ; Watson on Sheriff 191 ; Clark v. Withers, 6 Mod. 290 ;
8. c. Ld. Raym. 1072 ; Cro. Jac. 514 ; Co. Litt. 272 ; F. N. B. tit.
Recaption.



1841.] OF PENNSYLVANIA. 456

[Quinn v. Wallace.]

Mr. Emlen and Mr. Williams, for the defendant in error, cited
2 Saund. on Plead, and Evid. 168; Hill v. Miller, 5 S. & R. 355:
Smith v. Aurand, 10 Id. 92 ; Lear v. Edmonds, 1 Barn. & Aid.
157; Lingham v. Warren, 2 Brod. & Birigh. 36; 6 E. C. L. R.
10 ; Hudd v. Ravener, 2 Brod. & Bingh. 662; 6 E. C. L. R. 306;
2 Chitty's Prec. 708, note.

KENNEDY, J., delivered the opinion of the court.

The first error is an exception to the opinion of the court, reject-
ing the receipt proved to have been given and signed by Samuel
Collins for rent, thereby acknowledged to have been paid to him up
to the first of January 1835. Had the receipt been given 'by
R. Willing, the lessor of Collins, or had evidence been given, show-
ing that Collins was authorized by Willing to receive the rent for
him, the receipt would have been admissible evidence. But without
this it does not appear to have been admissible in this action as
against Willing or Wallace his bailiff, even to prove the fact that
the amount of the money mentioned in it was paid by the plaintiff
to Collins ; *because for aught that appeared, the receipt r*^cj
might have been given by Collins without his having received ^
the money mentioned therein, or any part of it. It might have
been a contrivance between the plaintiff and Collins to defraud
Willing. The fact of the money having been paid was susceptible
of better evidence ; for Collins, if no other, knew it, and not being
a party to the suit, might have been called as a witness to prove it.
Evidence of his bare declaration that he had paid it, could not have
been received to prove it was so in this case ; because it would only
have been hearsay ; and his acknowledgment, though in writing,
that he had received it, is of the same character and no better.
Neither am I inclined to think that the evidence of Collins or any
other, if objected to, could have been received under the plea in
this case, to prove the fact, that the amount of the rent mentioned
in the receipt was paid by the plaintiff to Quinn. The plea, it
must be observed, is, no rent in arrears. Now the fact of the
plaintiff having paid rent to Collins, without any authority from
Willing to Collins to receive it for him ; or agreement on the part
of Willing not to distrain the goods of the plaintiff for rent that
should become due upon the lease from Willing to Collins, if the
plaintiff paid to Collins the rent as it became payable according to
the agreement between them, could not extinguish or lessen the
rent falling due to Willing under his lease to Collins, which is the
rent claimed here ; or tend in the least to show that none was due
thereon by the latter. If however the plaintiff had pleaded to
the cognisance of Wallace, as bailiff of Willing, that he had made
a former distress on the goods of Collins of sufficient value to satisfy
the rent claimed, I am not satisfied that it would not have been



457 SUPREME COURT [March Term,

[Quinn v. Wallace.]

admissible evidence, in connection with what was testified to by
David Hazard, that the plaintiff some two or three days previous to
the distress being taken in this case, told Wallace that he had paid
his rent to Collins. It might possibly therefore have been con-
sidered an equitable circumstance in favor of the plaintiff, which
would have gone to discharge his goods from being distrained on for
the rent in question, after goods of sufficient value belonging to
Collins to satisfy it had been distrained on. On this point, however,
I do not wish to be understood as giving any settled opinion, because
it will appear in the sequel that such a plea, if established by proof,
would be a bar to the second distress, without the aid of such a
circumstance.

Then in regard to the three remaining errors, they may be re-
duced into two questions ; first, is it lawful for the landlord, after
having distrained the goods of his immediate lessee for the amount
of rent due to him, to distrain again the goods of a sub-lessee on
account of the same rent, without showing any cause for the second
distress ? And secondly, if the second distress be taken, especially
after the time allowed by law for replevying the first, and it appears



*458]



that a sale of the first was made under the act of assembly, *at



the instance of the landlord, upon whom does the burden lie
of proving the sufficiency or insufficiency of the first distress ; does
it rest upon the landlord or sub-tenant ?

As to the first question, Mr. Comyn in his treatise on the law
of Landlord and Tenant, 414 (6 Law Lib. 233), lays it down, that
by the common law, if there were sufficient property upon the
premises, and the landlord neglected to take sufficient distress, he
could not again resort to the tenant's property to make up any



Online LibraryPennsylvania. Supreme CourtReports of cases adjudged in the Supreme court of Pennsylvania, in the Eastern district [Dec. term, 1835 - Mar. term, 1841] (Volume 6) → online text (page 51 of 75)