Packard v. Hill

A plaintiff ¡^ted,1Sthou°"h out of court, may yet appear and move to set aside the nonsuit. A nonsuit as to one count is not a nonsuit as to others; and the plaintiff may, notwithstanding, proceed upon the others in a regular course. But on a venire tarn quam, to try an issue as to one count, and assess contingent damages on demurrer to others, if the plaintiff be nonsuited as to the issue, he cannot proceed to assess contingent damages on the counts demurred to. In pleading a judgment, the party should show in what court it was obtained; and cannot say, generally, it was in a court having competent jurisdiction. And in declaring on a promise to indemnify against a recovery of moneys, it is not sufficient to aver generally, that the plaintiff was compelled to pay. But held, that the pleading in both instances is good on general demurrer; the defects being formal. The contract was to indemnify the plaintiffs, against expenses incurred by them, or their agents. The averment was, that one of the plaintiffs, as agent of all the plaintiffs, had been, damnified. Meld, good on general demurrer. Showing the copy of a foreign judicial record, certified by a clerk having the custody of the records of the court in which judgment was rendered, the handwriting of the clerk being proved, and the court having no seal is a sufficient authentication; and entitles it to be read in evidence here; especially, where it is proved farther, that the record is authenticated in the usual form of those sent to be used as evidence in a foreign country. Parts of a record are probably admissible in evidence. The whole is not necessary. It is sufficient that extracts, are furnished sufficient to show, prima facie, the facts sought to be proved. On an agreement to indemnify against law-suits, whether an arbitration is included? Quere. But where an agreement was to idemnify against law-suits brought or to be brought, and an arbitration was pending at the time of the agreement; held, that the agreement reached the arbitration. ** The history of the execution and satisfaction of a judgment or condemnation for a sum of money, in the record of a foreign judicatory, is evidence of payment.

The plaintiffs, Packard and three others, declared against the defendants, for that the plaintiffs, being partners under the firm, of Packard & Growen, certain differences arose be tween them, acting as agents of the defendants, as therein after mentioned, and one Otzen, concerning the freight and average on a cargo of iron, landed from the Swedish ship Fortuna, of which Otzen was captain, at ^Havana; that thereupon, in consideration that the plaintiffs would continue the defendants! agents, &c., the defendants bound themselves to save the plaintiffs harmless from any costs, damages and expenses, which might thereafter arise in consequence of any law-suit or law-suits, which then were or might thereafter be brought against the plaintiffs or their agents, by Otzen, or the owners of the vessel, or their agents, for the recovery of any freight or average on the cargo landed; and to sustain and forthwith reimburse the plaintiffs, or their agents, for any sum or sums of money which they or their agents might be liable to pay, in consequence of any act of the said master, owners or agents, about the said business, either in or out of court. The declaration then averred that the plaintiffs continued their agency, &o.; that afterwards a suit was instituted by Otzen at Havana, and prosecuted to judgment there, in a court having competent jurisdiction, against Growen, as being the agent of the plaintiffs, and responsible in their behalf; which suit was prosecuted to recover a certain claim alleged to be due as average on the cargo landed; and that, by the consideration and judgment of the court, $2607 37 were adjudged to be paid by Growen, agent of the plaintiffs, and which he paid as their agent. The second count recited that the plaintiffs, being agents of the defendants, respecting the concerns of the ship For-tuna, and it being contemplated that some claim or demand might be made by Otzen, or the owners of the ship, or their agents, for a recovery of freight or average on the cargo landed, in consideration, &c., (as in the first count,) the defendants promised to save the plaintiffs harmless from any costs, damages and expenses, which might arise in consequence of any law-suit or law-suits, which then were, or might thereafter be brought against them, or their agents, by Otzen, &c., for the recovery of freight or average on the cargo landed; and that the defendants would forthwith reimburse the plaintiffs any sum of money which the defendants, or their agents, might be liable to pay, in consequence of any act of Otzen, or the owners, &c., in relation to the said matter, either in or out of court. This ‘"'count then averred that Gowen, as agent of the plaintiffs, and acting in their behalf, was compelled to pay, and did pay to Otzen, on account of a claim for the freight, one sum of §5,000; and another sum of $5,000, on account of a claim for average. The third count was like the first, except that it averred the suit was instituted against Gowen, one of the plaintiffs, acting in their behalf as their agent; that the adjudication was, that Gowen, agent as aforesaid, should pay; and that he, agent of the plaintiffs, was, by force of the judgment,, compelled to pay, &c. The fourth count was the common one for money paid, laid out and expended. General demurrer to the three first counts, and joinder. The general issue was pleaded to the fourth count. The plaintiff proceeded to trial at the ISTew York circuit, in April, 1825, on a venire tam quam, before Betts, (late) C. Judge. On the trial, the plaintiffs were nonsuited as to the 4th count. They then proposed to assess contingent damages on the three counts demurred to. To this the defendants’ counsel objected; but the judge overruled the objection. The plaintiffs then proved a written agreement by the defendants, dated August 15th, 1815, by which they bound themselves to the plaintiffs, (by the name of Packard & Gowen,) to save them harmless for any costs, damages and expense, which might arise in consequence of any law-suit or law-suits, which were or might be brought against Packard & Gowen, or their agents, by Captain Otzen, of the Sweedish ship Fortuna, the owners of that vessel or their agents, for the recovery of any freight or average, on a cargo of iron landed from this ship in Havana. And farther, the defendants agreed to sustain, and forthwith reimhurse the plaintiffs or their agents for any sum or sums of money, which they or their agents might be liable to pay, in consequence of any act of the master, overseers or agents, about said business, either in or out of court. *The plaintiffs then offered in evidence a document in Spanish, and a translation into the English language. This document purported to be extracts from the proceedings in the court of Consulado, at Havana, founded on an award, pronounced February 5 th, 1815, between Otzen & Go wen, in relation to the iron in question, in which Otzen recovered against Gowen $2,607 37 1-2. It appeared by the same extracts, that this sum was paid on the 18th of December, 181$. These proceedings were certified by one of the clerks of the court. His certificate was verified by the "certificate of one of the royal college of notaries; with the seal of the college affixed, and certified by the American consul. The plaintiffs also produced a witness at the trial, who proved the signature of the clerk, and that the court has no seal; and that the record was authenticated in the manner customary at Havana, for the court of Consulado, when to be sent to foreign countries; and that the court has jurisdiction of all commercial causes. The defendants’ counsel objected that the document was not sufficiently proved; but the judge received it in evidence. The defendants’ counsel then took several objections to the sufficiency of the document; 1. Because it did not set forth all the proceedings in the cause; 2. Because they appeared to be founded on a voluntary arbitration; not upon a law-suit; 3. They were against Gowen, individually; not against the plaintiffs or their agents; 4. That except a recital in a certain power of attorney set forth among them, there was no evidence that the suit related to the subject matter of the agreement, and the record was no evidence of the recital; 5. That the document was no evidence of the payment of the money. The jud]ge, however, allowed the document as sufficient evidence; and the jury assessed the plaintiff’s damages at $3,448 24. ' The defendants’ counsel excepted to the opinion of the judge, on all the objections taken at the trial; and cause now came on to argument, upon the demurrer- and bill of exceptions. By being nonsuited on the issue, the plaintiff is out of court; and has no right to come here, either to _ argue the demurrer or bill of exceptions. A nonsuit as to one count, is a nonsuit as to the whole action. (Snow v. Como, 1 Str. 507.) This is evident from the language of the ‘entries. (Lil. Ent. 514; 10 Wentw. 423; Tidd’s Pr. Forms, 4th ed., 309, 370; K. B. Pr. 7th ed., 452, 453; Lee’s Dict. Pr. 925; Sher. Pr. 288.) The case is the same, in effect, as if the plaintiff had made default on the return of the jury. (15 Vin. 574, and the cases there cited, Nonsuit (K) pl. 1, 2, 3, 4, and 6; Sid. 378; 3 Bl. Com. 376; 2 Leon. 177.) The case of Slowly v. Eveley, (Hob. 180,) which will be cited against us, was not one of nonsuit, but of noth proseguí._ This appears from a report of the same case in Cro. Jac. 439; under another title, Euley v. Stoley. No doubt the cases are identical. The term and the number of the roll are the same. (Tr. 12 Jac. 1; Roll. 983.) The case is there stated to be one of nolle prosequi. The plaintiff should have first argued his demurrer. The writers on law uniformly adopt the doctrine as laid down in Croke. (Lawes’ El. Tr. Pl. c. 8, p. 168; Tidd’s Pr. 797; Dougl. 169, note; Bing. Judg. 10; 2 Dunl. Pr. 656. But the demurrer is well taken. The first and third counts should have specified the court by whose judgment Growen was compelled to pay. At least the general nature of the proceedings should have been set forth. (2 Salk. 517; Laws on Assumpsit, 669, 670; 3 Chit. Pl. 119;(a) Hob. 266; 2 John. Rep. 433.) The second count should have specified how he was compelled to pay. Neither count avers that the plaintiffs themselves had paid any thing. The agent has paid; but there is no averment that he was reimbursed by the plaintiffs. Co wen, it is true, is one of the plaintiffs; but that makes no difference against us. The action should either have been in the name ol Q.owen alone; or else the plaintiffs should be shown to haye paid. As to the bill of exceptions. The document, purporting to be a copy of the Havana judgment, was not duly authenticated. *It should have been proved by an examined copy; or a copy certified under the hand of the judge, his handwriting being proved in the usual way. (4 Cowen, 526, note, and the cases there cited; 4 Campb. 29; 2 Stark. Rep. 7, 9; 1 Chit. Com. Law, 653. But if duly proved, the document is inadmissible. It should have set forth all the proceedings in the cause; or, at least, enough to remove all doubt, that the judgment was concerning the matters specified in the agreement. (7 John. 519.) The proceedings are against Growen individually ; not against him as agent for the plaintiffs. At any rate, they cannot' be received as evidence of the payment. A record is evidence only of the point decided. (1 Marsh, on Ins. 411; 8 T. R. 192.) As to the preliminary point: the precedents cited, all relate to a general nonsuit; not one upon a single count. Snow v. Como, (Str. 507,) is the only case in point against us ; and that is a mere nisi prius decision. The case of Slowly v. Eveley, (Hob. 180,) is directly the contrary; and Croke, who reports the case differently, is not to be relied on. He is remarkable for the carelessness and looseness of his reports. Suppose there had been no demurrer; the evidence upon the 3d count would have been excluded; and the cause gone on upon the other •counts. As to the demurrer: the first count is on a promise to indemnify the plaintiffs against any suit to be brought by Otzen; and to reimburse them for what they might be liable to pay; one of them having been obliged to pay, as the agent or representative of the plaintiffs, and responsible in their behalf. Or this count may be considered as on a promise to save the plaintiffs harmless; and reimburse them or their agents, for any money which either might be liable to pay. Gowen, being one of the plaintiffs, who were all agents of the defendants; and being responsible in behalf of the plaintiffs, was, by this fact, constituted their agent. The third count is on a contract of indemnity against any law-suit which might be brought against the ^plaintiffs or their agents; and to reimburse them or their agents. It avers expressly, that the proceedings against Gowen were against him as their agent. ' The objection that the allegation as to the court in which the proceedings took place is too general, should have been brought up by special demurrer. Beside, the court may have no name; nothing by which it can be more particularly described. Ho suit will lie by Gowen alone. The promise was to the plaintiffs jointly, covering all claims against them or either of them; and the action must follow the joint character of the engagement. (1 Chit. Pl. 9; 2 Saund, 116, b; 1 John. Cas. 327.) The contract was not made with Gowen individually. But it is not necessary to show actual payment. It is enough that the plaintiffs were liable to pay. This is not only an answer to the demurrer, but also to that branch of the bill of exceptions which questions the record as proof of payment. There was no need of such proof. "We go farther than is necessary when we show a payment by any one. In the 3d count, we aver payment by the agent. There is no doubt that this is sufficient, admitting payment to be necessary. We were not bound to wait a law-suit. As to the bill of exceptions. Here is evidence sufficient to establish the judgment, even on a plea of nul lid record, ormo judgment recovered. The clerk who signed, was shown to be the proper person to authenticate the proceedings ; and his authentication was regularly shown. (2 Chranch, 238; 4 Campb. 29.) There being no seal of the court, the only question is as to the proper person who should certify the proceedings. The record shows what the recovery was for. But it is a sufficient answer, that the identity of the subject in court, with that of the agreement, is admitted by the demurrer. If evidence of payment was necessary, here was a payment of record. Was it ever contended that an entry of satisfaction on a judgment roll, should not avail as evidence of payment? It is the highest and most satisfactory of all evidence. The late chancellor Kent, in his commentaries, gives the character of Croke’s reports. He styles them a work of credit and celebrity among the old reporters; and speaks of them as bearing a high character' from the eminent qualifications of the author, and the precision with which he reported. (1 Kent’s Com. 451.) The consideration of the promise alleged in the declaration, proceeded from Growen alone. The action should, therefore, have been in his name individually. The payment was the foundation of the action. The demurrer admits nothing for the purposes of this argument upon the bill of exceptions. Everything must be proved; and it is in answer to whatever the plaintiffs may claim, that the matter was settled, and the agent has concluded himself, by a voluntary arbitration.