Townsends v. Jemison

THIS case was brought up, by writ of error, from the District Court of the United States for the Northern District of Mississippi.

It was a suit brought by Jemison against Townsend, to recover a sum of money which Jemison had paid for him to the Mississippi Union Bank, at Macon. The consideration appears to have been, that Townsend should take up a note at the Commercial Bank of Columbus, for which he, Townsend, was bound for one John B. Jones; but in what manner Townsend's taking up the latter note would benefit Jemison did not appear from any part of the record.

On the 21st of May, 1842, the suit was commenced by issuing a summons, which was indorsed as follows:--

'This action of assumpsit is brought to recover the sum of $4,000, with interest at 10 per cent., (paid for defendant,) from 27th January, 1840, to Mississippi Union Bank; defendant agreed to pay for plaintiff same amount in the Commercial Bank of Columbus, Mississippi, in consideration that plaintiff would pay same amount for him to the Mississippi Union Bank at Macon; this action is brought to recover said sum of money, defendant having failed to comply with his promise.

'HARRIS & HARRISON, Plaintiff's Attorneys.'

The declaration originally filed was amended, and on the 6th of December, 1842, the amended declaration was filed, which contained three special counts and the general money counts. The first of the three special counts was as follows, the other two being similar in substance.

'Robert Jemison, who is a citizen of the State of Alabama, by leave of the court for that purpose first had and obtained, by attorney, complains of Thomas Townsend, who is a citizen of the Northern District of the State of Mississippi, and who was summoned to answer the said plaintiff of a plea of trespass on the case in assumpsit. For that whereas, heretofore, to wit, on the 20th day of March, A. D. 1840, at, to wit, in said district, in consideration that the said defendant was then and there bound, and liable by note in writing, to the Commercial Bank of Columbus, Mississippi, for one John B. Jones, as his security for about the sum of nine thousand eight hundred and six 50/100 dollars, besides interest thereon; and was also indebted to the Mississippi Union Bank, at its branch in Macon, in the county of Noxubee, about the sum of three thousand dollars, on a note of four thousand dollars, executed by the said defendant and others, payable at Jackson, at the banking-house of the said Mississippi Union Bank, at Jackson; and in consideration that the said plaintiff would take up the said last-mentioned note to the Mississippi Union Bank, and would also take up the note of the said Jones in the Commercial Bank of Columbus, Mississippi, on which the said Townsend was liable as security as aforesaid, except an amount equal to the amount of said Townsend's liability to the said Mississippi Union Bank, and release the said Townsend from the balance of his said liability to the said Commercial Bank, he, the said defendant, then and there agreed with the said plaintiff, to pay on his said liability, in the said Commercial Bank of Columbus, Mississippi, the same amount which the said plaintiff might take up for him, the said Townsend, in the said Mississippi Union Bank. And the said plaintiff avers, that afterwards, to wit, on the 10th day of May, in the year 1840, he did take up the said Townsend's note, in the said Mississippi Union Bank above stated, according to the said agreement, amounting to the sum of three thousand and ninety 41/100 dollars. And the said plaintiff further avers, that he did then and there, to wit, on the same day and year last named, at, to wit, in said district, take up the notes of the said John B. Jones, in the said Commercial Bank of Columbus, Mississippi, on which the said Townsend was security as aforesaid, according to his said agreement. And the said plaintiff in fact says,' &c., &c.

The subsequent pleadings were as follows:--

'And the said defendant, by attorney, comes and defends the wrong and injury, when, &c., and says he did not undertake or promise in manner and form as the said plaintiff hath above thereof complained against him; and of this he puts himself upon the country, &c.

'COCKE, SMITH, & GHOLSON, for Defendant.'

'And the plaintiff doth the like.

'HARRIS & HARRISON, Plaintiff's Attorneys.'

'And for further plea in this behalf, the said defendant, as to the first, second, and third counts of the said declaration, says, that the said plaintiff ought not to have or maintain his action, because he says that, by an act to prevent frauds and perjuries, it is enacted, that no action shall be brought whereby to charge the defendant upon any special promise to answer for the debt, default, or miscarriage of any other person, unless such promise or agreement, or some note or memorandum thereof, shall be in writing, and signed by the party to be charged therewith, or some other person by him thereunto lawfully authorized. And the said defendant avers, that the said plaintiff hath brought his action to charge the defendant for the debt of John B. Jones, and for no other purpose whatever; and that there is no agreement in writing touching the promise of the said defendant, as alleged in said counts of said declaration, to answer for the debt of the said John B. Jones, or any memorandum or note thereof signed by the said defendant, or any other person by him thereunto lawfully authorized. And this he is ready to verify, wherefore he prays judgment, &c.

'COCKE, SMITH, & GHOLSON, for Defendant.'

Plaintiff's replication to defendant's above-stated pleas, filed at December term, 1842, in the words and figures following, to wit:--'The United States of America, District Court for Northern District of Mississippi, December term, 1842.

'ROBERT JEMISON    }

v.    }

THOMAS TOWNSEND. }

No. 108.

'And the said plaintiff, as to the said plea of the said defendant by him secondly above pleaded, saith, that he, the said plaintiff, by reason of any thing by the said defendant in that plea alleged, ought not to be barred from having or maintaining his aforesaid action thereof against him, the said defendant, because he says that he, the said plaintiff, hath not brought his action to charge the said defendant for the debt of John B. Jones, and for no other purpose whatever; but that the said action is brought to charge the said defendant upon his said several original promises and undertakings, founded upon the said several new and sufficient considerations in the said count of said declaration stated and set forth; and this he prays may be inquired of by the country.

'HARRIS & HARRISON, Plaintiff's Attorneys.'

Defendant's demurrer to plaintiff's replication, filed at December term, 1842, in the words and figures following, to wit:--

'And the said defendant saith, that the said replication of the said plaintiff to the said second plea of the said defendant is not sufficient in law for the said plaintiff to have or maintain his action aforesaid; and this he is ready to verify; wherefore he prays judgment, &c.

GHOLSON & SMITH, for Defendant.'

In this condition of the pleadings, it appeared by the record that the parties went to trial, when the jury found a verdict for the plaintiff, assessing his damages at $3,451.88.

The trial took place on the 12th of December, 1842.

An execution was issued upon the judgment, then an alias, a pluries, and an alias pluries.

On the 5th of June, 1845, a writ of error was sued out, which brought the case up to this court.

It was argued by Mr. Cocke, for the plaintiff in error. His argument was as follows.

This is a writ of error to the Circuit Court of the United States for the Northern District of Mississippi. The facts may be briefly stated to be these. Jemison, the defendant in error, instituted an action of assumpsit in the court below against Townsend, to recover the sum of three thousand and ninety dollars and forty-one cents, which Jemison paid for Townsend to the Mississippi Union Bank, upon the agreement of Townsend to pay the same amount for Jemison to the Commercial Bank of Columbus, Mississippi, upon a note of one John B. Jones, upon which Townsend was indorser for Jones. In the declaration filed at the June term of said court, 1842, there is a special count, to which is added the usual money counts. There is a demurrer to the special count,-1st, because there is no legal cause of action set out; 2d, because no legal breach is designated; and to the money counts non assumpsit was pleaded. The court below made no disposition of the demurrer, but gave leave to the parties to amend their pleadings at the next term. Jemison filed an amended declaration, containing three special counts on the above facts, placing them under different phases, and also adding the usual money counts; non assumpsit was pleaded to the money counts, and to the special counts was pleaded the statute of frauds and perjuries. There was a special replication to the last plea pleaded, to which the defendant demurred, and the court below tried the cause without making any disposition of the demurrer, and permitted the plaintiff below to proceed to final judgment over the demurrer. The case being tried in Mississippi, it is believed the rule governing such cases in that State should prevail. The regularity of these proceedings being the subject of inquiry on behalf of the plaintiff in error, we maintain,-1st. That the statute of frauds and perjuries pleaded is a full and conclusive defence to the matters alleged in the declaration. 2d. That the demurrer to the replication raised the question of the sufficiency of the matters contained in the whole declaration in law to charge the defendant upon the agreement set out; and it was error in the court below to have permitted the plaintiff to proceed to final judgment while the demurrer was pending and undetermined. 3d. That the defendant was entitled to his judgment in the court below upon his demurrer. Let us examine, first, the three several counts contained in the declaration. The first count is as follows, in substance:-In consideration that defendant was liable, by note, as security for one John B. Jones to the Commercial Bank of Columbus for about $9,806.50, and was indebted to the Mississippi Union Bank about $3,000 on a note of $4,000, and in consideration that plaintiff would take up said last note to the Union Bank, and would also take up said Jones's in the Commercial Bank, except an amount equal to the amount of defendant's liability to the Union Bank, and relieve defendant from the balance of said debt to the Commercial Bank, defendant agreed with and promised plaintiff to pay, on his, defendant's, liability to the Commercial Bank, the amount which plaintiff might take up for him, defendant, in the Union Bank; and that plaintiff did take up defendant's note in the Union Bank to the amount of three thousand and ninety 41/100 dollars, and did take up said note to the Commercial Bank, and defendant has never plaintiff nor the Commercial Bank. To this count the defendant pleaded that the plaintiff's action was brought to charge him upon a promise to pay him the debt of John B. Jones, and that the statute of frauds and perjuries-How. and Hutch. Miss. Digest, 370, 371-barred any such action on such promise. To this plea the plaintiff replead, and, by his replication, denies that the count is on a promise to pay Jones's debt. To which the defendant demurs, and for good cause; for the defendant's promise to pay so much of Jones's debt, contained in the declaration, is clearly a promise to pay the debt of another person, within the statute of frauds and perjuries aforesaid. The replication denies that the count is brought on any such promise, and thus the replication denies the count itself, and is as good a defence as the defendant could have desired. What better defence could he ask than that the plaintiff should, by his own pleadings, deny the cause of action set out in the count? For this reason, the demurrer was well taken, and should have been sustained. But again, in support of the demurrer, the plaintiff shows that he himself took up the whole debt to the Commercial Bank, when the contract set out was that he was to take up a part thereof only, and was to leave such part as was equal to the amount paid to the Union Bank by plaintiff, to be paid by defendant to the Commercial Bank. Townsend's promise was to pay that amount to the Commercial Bank upon Jones's debt, and not to pay the plaintiff by taking up the whole of Jones's debt to the Commercial Bank. Plaintiff put it out of defendant's power to pay the Commercial Bank. He relates the contract set out, and then seeks to recover damages of defendant for a breach which was brought about by his own breach of the contract first committed. Again, it was Jones's debt that plaintiff took up. Thus, in direct violation of the agreement, Jones was the principal in the note at the Commercial Bank, and, as such, was, under the statute of this State, first liable directly for the payment of the note, either to the bank or the plaintiff. Townsend being a mere accommodation security for Jones, the bank could not hold Townsend responsible for the money until Jones had been pursued to insolvency; and if the bank cannot, how can Jemison hold Townsend responsible, until he first fail to collect it from Jones? The count shows that Townsend was a mere indorser for Jones, and Jones being first directly liable to pay the Commercial Bank debt, for aught that appears to the contrary he may have paid the plaintiff the whole amount of said note. As the plaintiff voluntarily took that amount of the Commercial Bank debt which, by his contract, he was bound to have left to be paid by the defendant, he has placed it out of the power of the defendant to comply; let him seek his remedy on the note, and not bring his action to recover damages for a breach which he himself was the cause of. The demurrer was good as to the replication and first count, and yet the plaintiff passed the demurrer in the court below unnoticed, and the court permitted him to proceed to judgment without joinder in the demurrer, and without making any disposition of it. If the demurrer was well taken, judgment should have been for the defendant; if not, a judgment of respondent ouster ought to have been entered by the action of the court; the defendant below could not take issue on the replication. See How. and Hutch. Digest, 616; Revised Code of Mississippi, 120; Walker v. Walker, 6 How. (Miss.) 500; Bright v. Rowland, 3 ib. 415; Davis v. Singleton, 2 ib. 681; Brown v. Smith, 5 ib. 387. The second count states, that, in consideration that the defendant was bound to the Commercial Bank, by note, as security for Jones, and was also indebted to the Mississippi Union Bank in the sum of three thousand dollars on a note for four thousand dollars, and in consideration that plaintiff would take up the note in the Union Bank, defendant promised plaintiff to pay same amount on said note in said Commercial Bank, and plaintiff did take up said note of defendant in said Union Bank, and paid the sum of three thousand and ninety 41/100 dollars; yet defendant has not yet paid the Commercial Bank on said note of John B. Jones, on which defendant is liable as aforesaid. To this the above plea was pleaded, also, that the promise declared on was to pay the debt of another, and that the statute of frauds and perjuries aforesaid was a bar. And to said plea plaintiff also replead, and by the replication denied that the promise declared on was a promise to pay the debt of Jones; and thus the plaintiff denies his own second count. And thereupon the defendant demurs, as well he might. The defendant could have no better defence than the denial of the plaintiff of his own cause of action; and, upon such denial, the defendant rightfully demurred to any further answer. See the same authorities. Again, has plaintiff ever sustained any injury by reason of defendant's failure to pay Jones's debt? It is a matter of no moment to plaintiff whether defendant paid or whether Jones paid, or whether Jones's debt was paid at all; he shows no affinity between himself and Jones, or Jones's debt, whereby the payment would have been an advantage, or the non-payment a disadvantage, to plaintiff. How could the failure of defendant to pay a debt to Commercial Bank for which he, as the security of Jones, owed said bank, affect the plaintiff, who was a stranger to said debt? The Commercial Bank is competent to take care of its own matters; and the declaration does not show that plaintiff was guardian or trustee for said bank, or that he was in any wise interested in the payment of a debt due to it. If the plaintiff has taken up defendant's note to the Union Bank, let him sue on the note, and not seek to recover damages when he could not possibly sustain any, by reason of the non-payment by defendant to Commercial Bank of said note to Jones. The third count states that defendant, in consideration that he was indebted to the Union Bank by several notes, and in consideration that he was liable for John B. Jones to Commercial Bank for about $9,806.50, and in consideration that plaintiff would take up any or all of said notes in the Union Bank, agreed with plaintiff to pay to the credit of defendant's note in the Commercial Bank, on which he was security for Jones, whatever sum plaintiff should pay to the Union Bank in taking up the liabilities of said defendant in the Union Bank; and the plaintiff has taken up defendant's liabilities to the Union Bank to the amount of $8,000, and yet the defendant has not paid the Commercial Bank same amount of money, but refuses to pay same. If defendant has refused to pay the Commercial Bank, is plaintiff injured thereby? If he has not paid, he is still bound to pay; and whatever he has paid or has not paid, or is bound or is not bound, does not in any wise affect the plaintiff. The Commercial Bank may have forgiven the debt, or cancelled the notes, or Jones may have paid it; and whether the bank forgave the debt or not, or whether it be cancelled or not, in no wise affects the plaintiff. If defendant had paid the Commercial Bank, as he was already bound to do as the security of Jones, Jemison would not have been any better off; and if defendant has not paid the Commercial Bank, it is the bank's own affair whether it is ever paid, and to Jemison it matters not whether it is ever paid. The three counts are wholly void of any cause of action; if the plaintiff has paid money for defendant, let him sue for it, but not seek to recover damages for the breach of a promise to pay the Commercial Bank a debt which the defendant was already bound to pay by his promissory note, and to pay which a promise to Jemison, who was a perfect stranger as to the debt due to the Commercial Bank, creates no new obligation. As to the other counts for money had and advanced, money paid, laid out, and expended, and for money had and received, they do not sustain any action because plaintiff hath appended thereto no bill of particulars, except a promissory note made by defendant and others to the Union Bank. Plaintiff can give nothing in evidence, under the common counts, except what is contained in his bill of particulars. See Statutes of Mississippi, How. and Hutch. Digest, 590. And he cannot give his note in evidence under said count, because it is a note given to the Union Bank by defendant and others, and, by the act of the Mississippi legislature, the bank could not assign this note. See Laws of 1840, p. 16; 3 Smedes & Marsh. 661. Here, by virtue of this law, Jemison could get no such interest in the note as to authorize him to sue him in his own name; for, in fact, no title passed to him in the note; the note is not negotiable nor assignable or transferable hereby. Then the court could not permit him to practise a fraud upon the law by waiving his action on the note, and use it in evidence to sustain a right of action against the defendant, where he holds the note itself in direct and known violation of the statute; this note is still the property of the Union Bank. There being no bill of particulars filed by plaintiff, except this note, and not being lawfully possessed of it, it was not properly introduced into the bill of particulars, and for the want of such a bill of particulars as the law requires, the common counts in the declaration are wholly void of any right of action; and it was error to admit the note under the money counts; the bank could not assign the note, because it is against the law of the State. The Supreme Court will reverse a judgment obtained upon a contract entered into in violation of the statutes of the State. See 2 Peters, 539. Suppose Townsend had paid the note, he is bound to know the law, that the bank could not assign his note, and could recover the amount of the debt again of him, if he pays it to plaintiff. See also 4 Peters, 410. We therefore contend that the judgment should be reversed, and judgment rendered for Townsend on his demurrer.

Mr. Justice WOODBURY delivered the opinion of the court.