Grice v. Ricks, 14 N.C. 62, 3 Dev. 62 (1831)

June 1831 · Supreme Court of North Carolina
14 N.C. 62, 3 Dev. 62

John Grice v. Jethro Ricks.

Ordinarily, the act of an attorney in a cause is taken to be the act of the party whom he represents. But where the assignor of a note stipulated, that it should be placed by the assignee in the hands of a particular attorney for collection, and by the act of that attorney the interest of the assignor, was injured, it was held, in a question between the assignor and the assignee, that the former was bound by the act of the attorney, and the fact that he had no redress against the attorney, did not discharge him.

Assumpsit, upon a special contract, tried before Martin, Judge, at Nash, on the spring circuit of 1830.

Upon non assumpsit pleaded, the case was, that the defendant had assigned to the plaintiff a note, made by one Lemon, payable to the defendant, and had written over his indorsement the following words: “ I assign the within to John Grice, until paid.” The plaintiff then proved, that when this indorsement was made, it was agreed between him and the defendant, that the note, should be placed immediately in the hands of an attorney named by the defendant, for suit, and that if the amount due on it was not collected, he, the defendant, would be answerable — -that suit was immediately commenced by the attorney designated by the defendant, who was retained by the plaintiff. The writ was in assump-sit, and was returnable to the ensuing November term of the County Court — that at February term the writ was amended, so as to be in debt, and judgment entered up, with a stay of execution until May term following. The defendant proved, that if execution had issued from February term, the amount of the judg-ement would have been realized*

*63There was no evidence offered by the plaintiff, that notice had been given to the defendant of Lemon’s default In making payment of the note. . ■

. His Honor instructed the jury, that to enable the plaintiff to recover, it was necessary for him to show, that there had been due diligence used by him to collect the amount of the note from Lemon. That granting a stay of execution for three months, was evidence, of a want of that diligence, and that if the neglect was the act eithei* of the plaintiff or of Ills attorney, he could not recover.'' That the attorney was the agent of the plaintiff, and was responsible for misconduct to him only. That the defendant had no redress against the attorney.

A verdict was returned for the defendant, and the plaintiff appealed. '

The Miorney-General and Seawell, for the plaintiff.

Gaston, Badger and Reverence, for the defendant.

IIuffin, Judge.

If is not disputed, that the giving of time, whereby the debt was lost by the insolvency' of the debtor, 'discharged the defendant as an indorser or guarantor ", provided it was the act of the plaintiff himself, or of one for whose acts the plaintiff was responsible.

Ordinarily, an agreed entry in a cause is taken to be the act of the parties. And also, ordinarily, the act of an attorney is taken to be the act of the party to the suit whom he represents. If therefore the case gíooá simply upon the effect of the contract, as written in the indorsement, the charge of the court would have been correct. But it was part of the agreement, as -was proved viva voce, that the note transferred should he put in suit immediately, under the management of a particular attorney. He might have possessed the especial confidence of the defendant, and upon that Ms willingness to guaranty might have been founded. Indeed the attorney might have been selected by the defendant himself, and that provision introduced at his instance and for his benefit. In that case, the defendant must be considered as contracting'for his skill and diligence. That he could not *64sue the attorney for wilful or negligent mismanagement does not determine tliis point; for one may bind himself, that a stranger shall do a particular act. At most, it would be a circumstance, which might incline a jury to think that the attorney was selected by the plaintiff and not by the defendant. In the opinion of the court, therefore, it ought to have been left to the jury to say, whether the plaintiff or the attorney gave the stay of execution; and if the latter, whether the plaintiff or defendant selected the particular attorney, and agreed to be responsible for his conduct, as between themselves. And if the cause depended on that, there would be a new trial.

•Where a parly, against whom a- judge expresses an opinion, refuses to submit to it, but puts his cause to the jury, and is unsuccessful, altho* the judge may have erred, yet the judgments not to be reversed, if upon the whole case jt is correct.

"Where the liability of a party is not direct, but collateral, and dependant upon the default of another, he must be notified of a defaultbeforehe -can be charged.

Hut the case further states, that the plaintiff gave no evidence of notice to the defendant of non-payment, or that he was looked to. If such notice was necessary, the judgment must stand, aitho’ the- court may have erred in other respects. The plaintiff would not sub-' mit to a nonsuit under the opinion of the court, adverse to him on one point. But he put his cause to the jury, choosing to run his chances for a verdict upon the whole case. If upon the whole case the verdict -was right, it must stand. The point of notice was made by the defendant ; and if, under any circumstances, the plaintiff could not recover upon the pooof made by him, there is .no ground to disturb the verdict; since the error of the Court upon a different matter did him no harm.

Was notice necessary ? We think it was. It is a general rule of law, founded in sound reason, that where the liability of one party is not absolute and direct, but is upon a collateral obligation, dependant upon, and arising from certain things to he done by tito other party, and lying peculiarly within his knowledge, he, who is to take benefit by the engagement, must give the other notice of what has been done, and that he is- held liable. From the nature of things, notice is part of the agreement;- and the debt does not arise before notice. Itis ofthe nature of a special request; and must he alleged in the declaration, and proved. Such is the contract of an indorser, under the law merchant; which is only one species of guaranty well defined indeed, and settled by long usage,' *65The doctrine has been applied to guaranties for goods sold. (Russel v. Clark, 7 Crunch. 69.) It has .also been applied to a guaranty óf a note or bill. It is true, that as to the time of giving notice, the rule is not so/ strict, as it is between indorser and indorsee. But no-1 tice in a reasonable time and before suit is indispensa-f ble. (Phillips v. Astling, 2 Taunt. 206.) What existed on the part of Hicks, until Grice gave him notice that the principal debtor had not ¿paid the debt? How was Ricks otherwise to know, that Grice had not received the money ? Was he hound to volunteer payment? We think not; hut that upon the authorities, notice to the defendant formed a necessary part of the plaintiff’s case.

A guarantor is entitled to no-,sam?. strictness required^as^hi ^SgySeofattm'

Per Curiam. — Judgment apeirmer.