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Tayloe v. Riggs. IP.

On being cross-examined, the witness shows a very imperfect recollection of the contract he is endeavoring to describe. He does not recollect that par was to be paid, nor that any advance on the stock was specified in the contract. But his impression and belief is that three per cent. was to be paid, upon a contingency that the next dividend amounted to four per cent., and that the written contract was to the same effect.

This part of the testimony shows that what the witness had previously said, was founded on his recollection of the conversation be. tween the parties which formed the verbal agreement, not on his recollection of the writing itself. He does not remember the terms in which the written contract was expressed, nor that par was to be paid for the stock; nor that any advance was specified. He believes that the written contract conformed to the verbal agreement, and on this belief is founded his impression that the three per cent. was to be paid on a contingency that the next dividend should amount to four per cent. Yet, when we refer to his description of the conversation which constituted the verbal agreement, no part of the consideration money is stipulated to be paid on a contingency.

The declaration does not state a contingent contract; nor is any inference to be drawn that it was contingent, from any part of the declaration, unless it be from the use of the word " advance," * which word, or any other equivalent to it, the wit- [ *6001 ness does not remember.

When a written contract is to be proved, not by itself but by parol testimony, no vague uncertain recollection concerning its stipulations ought to supply the place of the written instrument itself. The substance of the agreement ought to be proved satisfactorily; and if that cannot be done, the party is in the condition of every other suitor in court who makes a claim which he cannot support. When parties reduce their contract to writing, the obligations and rights of each are described and limited by the instrument itself. The safety which is expected from them would be much impaired, if they could be established upon uncertain and vague impressions, made by a conversation antecedent to the reduction of the agreement.

A part of the testimony came out on the cross-examination, which serves to show on what uncertain ground the belief of the witness was founded, that the three per cent. depended on the contingency, that the next dividend should amount to four per cent. He was asked whether the writing was, as deposed by another witness, in these terms, or in terms to this effect: “I bind myself to receive, at any time within three days, three per cent, advance upon my stock

Tayloe v. Riggs. IP. in the Central Bank of Georgetown and Washington." He answered, that the writing, as recollected by him, was the reverse of the terms above propounded, inasmuch as the writing described by him, bound the defendant to transfer the stock. This answer would indicate that the written contract bound the vendor to transfer his stock, at any time within three days, at three per cent. advance.

Upon the most attentive comparison we can make of the testimony given by Hebb, with the contract stated in the declaration, we think that his evidence does not support the contract as laid, and was therefore not competent to sustain the first count.

The second count, for money had and received, is not supported by any express promise to refund the money supposed to be ad. vanced on account of the dividend, if less than four per cent. should be declared, or if no dividend should be made. It rests on the promise which the law implies, where the consideration totally fails. If the written contract comprehended the dividend, with the stock itself, so that an advance of three per cent. was given for the whole, the circumstance that this entire agreement was founded on a calcu. lation of the separate value of the distinct parts which were the subject of it, would not entitle the purchaser to recover upon this count, because the consideration would not totally fail. Could the con

tract for the dividends be considered as entirely distinct [ * 601 ) from * that for the stock itself? The court is not prepared

to say that a mere speculative bargain, where the parties know that they are treating for a thing of uncertain value, which depends on unknown contingencies, and may greatly exceed their estimate, or may be nothing; where the purchaser knows that he buys a chance, as a lottery ticket, is a bargain on which the law will raise a promise to refund the purchase-money, if the consideration should fail. It is, therefore, the opinion of the court that the testimony does not show a contract which supports the second count.

The defendant in the circuit court then gave evidence to the jury, tending to prove that the contract was a mere purchase of stock, at an advance of three per cent., and then moved the court to instruct the jury, " that the evidence given by the plaintiff, either taken by itself or in connection with that of the defendant, is not competent and sufficient to be left to the jury as evidence that the said written contract continued to be executory after the transfer of the stock by the defendant to the plaintiff, and the payment therefor by the plaintiff, as stated by the plaintiff's evidence, nor that it contained Tayloe v. Riggs. 1P. any stipulation or condition that the three per cent. advance on the said stock was paid or agreed to be paid by the plaintiff, on a contingency that the next dividend amounted to four per cent.; or that the defendant should refund to the plaintiff the three per cent. advance upon the par value of the stock paid by the plaintiff, as aforesaid, in the event of there being no dividend declared upon such stock, at the then next ensuing regular period for declaring such dividend. The court refused to give this instruction, as prayed, being of opinion that so much of the said contract as relates to the advance of the three per cent. portion of the dividend, is executory, in so far as regarded the implied assumpsit of the defendant to refund the said three per cent. advance, in the event of their being no dividend on the said dividend day.”

It is probable that the circuit court might not have intended to express an opinion respecting the effect of the testimony laid before the jury, but we think such an opinion is expressed. The court declares that so much of the said contract as relates to the advance of the three per cent. portion of the dividend is executory, in so far as it regarded the implied assumpsit of the defendant to refund, &c.

These words, we think, determine that the testimony established this implied assumpsit. On the question whether such a contract was proved as did raise this assumpsit, there was undoubtedly much conflicting testimony, and the court erred, as we think, in declaring that opinion to the jury.

After several proceedings in court, which it is unnecessary * to mention, as they do not materially affect the merits of [ * 602 ) the cause, the plaintiff prayed the court to instruct the jury, that if, from the whole evidence, the jury should be of opinion that the defendant, in his written contract, did agree to sell his stock at par, and to take the earnings which the said stock had made in lieu of the dividend, which he stated and represented would be declared at the next dividend day; and if the jury should be further of the opinion that the plaintiff did actually advance to the defendant the amount of the said supposed earnings of the stock, under a belief created by the defendant that such dividend would be made, that then the plaintiff would be entitled to recover back the money so paid under such mistaken impression, if the jury should find from the evidence that there was no such dividend declared ; and that the said stock had not, at the time of the said contract, earned any such supposed interest or dividend.

This instruction was ultimately given by the court. In discussing its correctness, it is necessary to recollect that this is an action on a VOL. VII.

61

Tayloe v. Riggs. 1 P. written contract, not for deceit or misrepresentation in making that contract. The inquiry then is, what was the contract ? Not how it was obtained. The representation, then, of the seller, respecting the next dividend, and the belief of the purchaser, may be discarded from the case; and our attention must be confined to the contract as stated in the prayer of counsel. The jury were instructed to find for the plaintiff, if they were satisfied from the evidence that the defendant, in his written contract, agreed to sell his stock at par; and to take the earnings which the said stock had made, in lieu of the dividend to be declared at the next dividend day; and if they should also be satisfied that the plaintiff did actually advance to the defendant the amount of the said supposed earnings of the stock, under a belief that such dividend would be made. This instruction, when given on the naked contract, stripped of that alleged misrepresentation which forms no part of it, cannot, we think, be supported.

We are therefore of opinion that there is error in the proceedings of the circuit court, and that the judgment ought to be reversed, and the cause remanded to the circuit court, with directions to set aside the verdict and award a venire facias de novo.

This cause came on, &c., on consideration whereof this court is of opinion that there is error in the several instructions given by the circuit court to the jury, in this, that the said court instructed the jury that the evidence given by the plaintiff in that court was

competent to support both the first and second counts in [*603 ] the declaration, and also in this, that the said * court in

structed the jury that so much of the said contract as relates to the advance of the three per cent. portion of the dividend is executory, in so far as regarded the implied assumpsit of the defendant to refund the said three per cent. advance, in the event of there being no dividend on the said dividend day; and also in this, that the said court instructed the jury to find for the plaintiff, if they should be satisfied from the evidence that the defendant, in his written contract, agreed to sell his stock at par, and to take the earnings which the said stock had made in lieu of the dividend to be declared at the next dividend day, and that in fact no dividends were made. Wherefore, it is considered and adjudged by this court that the said judgment be and the same is hereby reversed and annulled, and that the cause be remanded to the circuit court, with directions to award à venire facias de novo, and to take other proceedings according to Fullerton v. Bank of the United States. iP.

law.

5 H. 278; 14 H. 253.

HUMPHREY FULLERTON, JOHN CARLISLE, AND John WADDLE, Plain.

tiffs in Error, v. THE PRESIDENT, DIRECTORS, AND COMPANY OF THE BANK OF THE UNITED STATES, Defendants in Error.

1 P. 604. Though written rules are preferable for the purpose of adopting a practice created by a state law, yet the circuit courts of the United States may do this without a written rule, and such adoption is sufficiently evidenced by the course and usage of the court. There is nothing in the constitution or laws of the United States, to prevent the circuit court of the United States for Ohio from adopting the act of that State concerning actions against

drawers and indorsers. It is sufficient evidence of a demand of payment of a note made payable at a particular

bank, that the note was at the bank, was its property, and was unpaid at maturity. If a note is discounted in renewal of a former note, the law does not prevent the bank from

charging the former note to the last indorser, and crediting him with the proceeds of the last note.

The case is stated in the opinion of the court.
The act of Ohio drawn in question was as follows:-

*“ That when any sum of money due and owing to any [*606 ] bank or banker shall be secured by indorsements on the bill, note, or obligation for the same, it shall be lawful for such bank or banker to bring a joint action against all the drawers or indorsers, in which action the plaintiff or plaintiffs may declare against the defendants jointly for money lent and advanced, and may obtain a joint judgment and execution for the amount found to be due; and each defendant may make the same separate defence against such action, either by plea or upon trial that he could have made against a separate action; and if in the case herein provided for, the bank or banker shall institute separate action against drawers and indorsers, such bank or bankers shall recover no costs : provided always, that in all suits or actions prosecuted by a bank or banker, or persons claiming as their assignees or under them in any way for their use or benefit, the sheriff upon any execution in his hands in favor of such bank or banker, their or his assignee as aforesaid, shall receive the note or notes of such bank or banker from the defendant in discharge of the judgment, and if such bank or banker, their or his assignee or other person suing in trust for the use of such bank or banker, shall refuse to receive such note from the sheriff, the sheriff shall not be liable to any proceedings whatever at the suit, or upon the complaint of the bank or banker, their or his assignee as aforesaid.”

Leonard, for the plaintiffs.

Sergeant, contrà.

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