Radcliff v. Bartholomew, Alpress & Co., 38 N.C. 556, 3 Ired. Eq. 556 (1845)

June 1845 · Supreme Court of North Carolina

38 N.C. 556, 3 Ired. Eq. 556

BENJAMIN RADCLIFF vs. BARTHOLOMEW, ALPRESS & Co.

When a bill states a fact, which is in the defendant’s own knowledge, he must answer positively, and not as to his remembrance or belief.

Butas.tp facts not within his knowledge, he must answer as tp his information and belief, and not to his information or hearsay merely, without stating his belief.

-When be answers he hath neither knowledge or information, his belief is unimportant, and he need not state it. It is sufficient for him to state, that he does not jgnow, nor has he heard or been informed of the facts charged in the bi]l, save by the bill itself.

An answer made by a principal, upon the information oí his agent in the matters in contest, which informatidn he avers he believes to be true, is clothed with all the authority, and has all the effect, of one made upon the personal •knowledge of the defendant.

■When a fact ha* been found by a verdict of a jury in a suit at law, the losing party cannot, without some explanation, have the matter re-tried in a Court oí Equity.

•The cases of McFarland v. McDowell, 1 Car. L. R. 110, and Peace v. Nailing, 1 Dev. Eq. 290, cited and approved.

•This was an appeal from an interlocutory order of the Court .pf Equity of Buncombe County, at the Spring Term, 1845, ,his Honor Judge Manly presiding, by which order it was directed, that the injunction granted in this case by a judge in the vacation, should be dissolved.

The bill sets forth that the sons of the plaintiff, Hillary and Thomas Radcliff, lived in Georgia, and had purchased from the defendants, through their agent Ebenezor W. Tollman, a n&mber,o.f clocks, and, to secure the payment, executed and delivered to the agent, Tollman, their promissory note for the sum of $550; that after this note was delivered to the agent, without the knowledge or consent of the said Hillary and Thomas, of either of them, it was altered by affixing a seal to the signature of Hillary Radcliff, and striking out the word George and inserting the word Alprcss; that, in this condition, it was presented to the plaintiff by Tollman for his signature, who, at the same time told him, his sons requested him to execute it, and that he, Tollman, accepted it only upon condition he should dó so; that the plaintiff, accordingly, did execute it, in the spring of 1840, but that, at the time he did so, he had no idea the forgery had been committed upon it in the manner set forth. The bill further states, that the clocks, the consideration of the note, were defective, many of them totally worthless, and an entire loss to the sons of the plaintiff, 'besides freight, pedlar’s hire, &c. • In his amended bill, as it is called, the plaintiff further charges, that • the forgery was committed by the agent Tollman; as was expressly proved on .the trial at law by two witnesses, and that the defect in the clocks was known to the defendants at the time of the sale. The bill then sets forth, that’upon the said note the plaintiff had been sued and judgment recovered against him by the defendants, and prays for an ‘ injunction, and concludes with a general prayer for relief.

The defendants admit, that Ebenezer Tollman was their agent in the sale of the clocks mentioned in the bill, to Hillary and Thomas Radcliff, and in accepting the bond, the subject of the complaint. They say that, as to the circumstances attending the transaction, they- are personally ignorant and know, nothing, except through fheir said agent; that they believe the statements made to them by their agent to be true, and .aver they are so; that the complainant had, before the sale of .clocks to his sons Hillary and Thomas, agreed with the said Tollman, that he would be their surety, and had accordingly executed a note or bond for a previous sale of clocks to them, which bond had been discharged by Hillary; that, upon the sale of the clocks now in controversy, Hillary Radcliff himseif delivered to the said Tollman the bond complained of, and, at the time of its delivery, there was a seal annexed to the name of the said Hillary, but none to that of Thomas, and *1 that the word “ George” had been erased and the name “ Al-press,” inserted ; and they aver, that after the said bond went into the possession of their said agent, it was, in no respect whatever, altered from what it was when he received it, ex. cept in the signature and seal of the plaintiff. They aver that their agent did not urge the plaintiff to execute the bond, as the surety of his sons, as it had been previously agreed he should do so, and, without such understanding and agreement, their agent would not have accepted the bond of the said Hillary and Thomas in payment for the clocks, as Thomas had no property and I-Iillary very little. As to the clocks, they state, they were made in their shop, and, before being sent off for sale, they were set up and run down, that defects might be rectified ; that this was their usual custom, and, if any defect existed, they were not conscious of it; they did not believe any did exist, and if they had been put up by a person of competent skill, they would have worked well, and as proof of this, that clocks made by them, at the same time with these, had been sold in the neighborhood, and they worked well. Upon the coming in of the answer, on motion of the defendants by their counsel, the injunction previously granted was dissolved, from which interlocutory order the plaintiff appealed to this court.

Francis for the plaintiff.

Badger for the defendants.

Nash, J.

The equity of the plaintiff’s bill consists in this, that by the alteration of the note, after it had been delivered by Hillary and Thomas Radcliff, without their knowledge and consent, they were discharged from all responsibility on it, and he was deprived of all recourse to them, upon being made to pay it; and if the facts were so, unquestionably such would be their effect. It would have been a gross fraud upon him, which would have given him a clear right to ask the aid of a Court of Equity. Is this equity xnet and repelled by the answer? If so, the injunction cannot stand. For, as the motion to dissolve must be heard upon the bill and answer, where the latter fully meets the allegations of the former and denies them, as it is oath against oath, equity will not longer deprive the defendant of the benefit of his judgment at law.

He is still, however, at liberty, by continuing over his bill as art original, to pursue his equitable redress, and so enforce his equitable rights, if he have any; but he is driven to his proofs, and can no longer rely upon his own oath. This principle is so familiar, that it cannot be necessary to cite authorities to sustain it. We think the answer does fully meet the allegations of the bill. ‘ It is true, the defendants were not personally cognizant of the facts ; they were not present when the bond was executed by Hillary and Thomas Radcliff, nor when it was executed by the plaintiff.. They cannot, therefore, of their own knowledge, say what was its condition at either of those periods. AllHhey know upon the subject, they derive from their agent; they state information given by him and assert their belief in its truth, and aver the facts to be as stated by him; they therefore adopt his statement and make it theirs. It is a rule of Chancery Practice, that when a bill states a fact, which is in the defendants own knowledge, he must answer positively, and not as to his remembrance or belief, but as to facts not within his knowledge, he must answer as to his information and belief and not to his information or hearsay merely, without stating his belief. When he answers he has neither knowledge nor information, his belief is unimportant, and he need not state it. It is sufficient for him to state, that he does not know, nor has he heard or been informed of the facts charged in the bill, save by the bill itself.- 1 John. C. C. Woods v. Morrell, 107. Cooper’s Eq. Pleading, 314. 3 John. C. C. 297. Morris v. Parker, Hoffman’s Chancery, 265. And it is very proper the rule should be so; otherwise every one, acting or contracting through an agent, would in all matters of injunctions, be very awkwardly situated__ The rules of Chancery Practice, then, authorize the principal wben called into court to answer a bill, to' adopt the iuformation of his agent and make his statement his own.- It follows, tjjat an answer must )j0 clothed with all the authority, and have all the effect,- of one made upon the personal knowledge of the defendant. According, then,-to- the answers filed in this case, the bond in question was by Hi'llary Radcliff, one of the obligors, delivered- to the agent Tollman, and, when so delivered, was precisely in the situation in which it was; when the plaintiff executed it; and it is expressly and positively de¿ nied, that any alteration, in any particular, was made in it after it came into the possession of Tollman. This denial in the answer is strengthedby some singular discrepancies in the bill. It is first alleged,- that after the said note was executed, a seal was attached to the name of Hillary Radcliff, without the knowledge or consent of the said Hillary, and the name “George” stricken out, and.the name “Alpress” added there-to. The bill then proceeds' — “ Your orator further charges and alleges the truth to be, that previous to the erasure and! insertion, in the Spring of 1840, the agent presented the note' to your orator, at Ashville,” &c. “ your orator never for a moment supposed that a forgery had been previously committed on the said promissory note by the addition of a seal, and the erasing the name, as before set forth.” There is in this statement a confusion and want of clearness sufficient to excite distrust and throw discredit on it.- We are first told, that, when the note was presented to the plaintiff in the Spring of 1840, there was no erasure or substitution ; and then we are informed,- that, when he executed it, he had not the slightest idea a forgery had been committed on it, by adding, a seal, and by the erasure or substitution. In McFarland against McDowell, 1 Car. L. R. 110, the court decide, that when the facts, on which the plaintiff’s equity rests, are by the answer positively denied, of the truth of them is rendered doubtful, by the facts and circumstances set forth in the answer, and the defendants swear they have no knowledge of the facts set forth in the bill, and that they do not believe them, so that, upon the whole,; the plaintiffs equity is rendered doubtful, the injunction be dissolved. Here are the material facts of the bill expressly denied, and the circumstances, as they are alleged to have occurred, set forth in the answer and doubts, to say the least, as to the truth of the allegations of the bill, excited not alone by the contradicting statements of the answer, but also by the contradictory averments of the plaintiff. According then to the rule in McFarland’s case, the injunction must be dissolved. But again, the fact of the forgery, according to the plaintiff’s 0W11 shewing, has been submitted to a jury in a trial at law, and the Verdict negatived the charge; and this, although the plaintiff, produced two witnesses, according to his allegation, to show that the alterations were in the handwriting of 'the agent, Tollman. The plaintiff, as far as we can see, acquiesced in the verdict, nor does he now complain of it, or give any explanation why the jury so found ; whether from a want of testimony, or any error in point oflaw on the part of the presiding judge. Without any explanation, he comes into a Court of Equity and asks for a new trial. We think he is not entitled to it; Peace v. Nailing, 1 Dev. Eq. 290. With respect to the insufficiency of the clocks, we do not consider any question upon that point as arising in this case. The bill is not framed with that view. It does not ask to haVe the contract rescinded, nor does it offer to return the clocks still on hand, or to account for those sold, nor are the proper parties, the purchasers of the clocks, before the court. In truth, it is a question in which the plaintiff has no concern. He places himself solely upon the ground of the fraud charged to have been practised on him, in procuring his execution of the bond.

The interlocutory order heretofore made in this case; dissolving the injunction, ought to be affirmed.

Per Curiam,' Ordered to be certified accordingly