Jones v. Horner

1. A parol authority may be executed by an instrument under seal, and on it assumpsit against the principal may be maintained. 2. A contract was made for the purchase of land, all payments made to be forfeited if there was delay beyond the times fixed for the other payments. The vendee gave his note for an extension of the time. Held, that under the circumstances he could not defend against the note on the ground of defect of title.

Error to the District Court of Philadelphia: No. 205, to January Term 1868. This was an action of assum-psit, brought April 25th 1865, by William II. Horner against Edward R. Jones. The 1st count of the declaration was on a promissory note dated December 30th 1864, made by the defendant to the order of the plaintiff for $750 in sixty days after date. The 2d count was on a similar note made by the “ defendant by his attorney in fact, J ames R. Booth.” There were also the common counts. The note is as follows:— “$750. “Parkersburg, W. Ya., Dec. 30th 1864. “ Sixty days after date for value received I agree to pay to W. H. Horner or order seven hundred and fifty dollars. “ Witness my hand and seal. “Edward R. Jones, [seal.] “ By his attorney James R. Booth.” On the trial before Sharswood, P. J., the plaintiff called J. R. Booth, who proved the note as being in his handwriting; he testified further that defendant employed him to settle a transaction in West Yirginia for the purchase of oil leases under a contract previously made between plaintiff and defendant; witness had been out before, and, as attorney in fact for Jones, had given Horner a note for $500 as part of the consideration for extending the time of payment on land for ninety days; defendant at the expiration of the time was still unable to comply, and employed witness to go out and have a further extension arranged with plaintiff; defendant told witness to give plaintiff some amount which he did not recollect, but to make the best arrangement with him he could. After some negotiation with Horner, witness executed the note in suit and gave it to him; defendant never made objection to the witness having given the note; he complained because plaintiff charged so much; defendant did not instruct witness positively to give a note; witness said to plaintiff that he did not know whether he had authority to give this note; plaintiff said he had; that witness had done it before, and he would take the risk. Witness also testified that the agreement {infra) of October 24th 1864 was in defendant’s handwriting, was given to witness by him to take to West Virginia, with a blank left for the consideration, which was filled in by plaintiff. The plaintiff also gave in evidence a lease, dated February 5th 1861, from J. S. Tate to J. W. Horner, for land in West Virginia, for boring for oil, Horner to commence against the 1st of July then next, and prosecute the work, and pay Tate one-tenth of the proceeds, the lease to continue until it ceases to be profitable to raise oil, when Horner may surrender it, &c. Also an agreement, dated October 26th 1864, between plaintiff, attorney in fact for J. W. Horner, and the defendant, for the sale of the lease above mentioned, for $10,000, of which $1000 was to be paid cash, $500 in fifteen days, $3500 in thirty days, and the remainder in sixty days, with these stipulations: “ The said lease to be valid and not subject to forfeiture, and Mr. Tate’s title to the leased premises to be good and valid. The said payment of $1000 to be absolutely forfeited by said Jones in case the subsequent payments not being met by him punctually.” Also an agreement, dated November 25th 1864, between the plaintiff and defendant, by which the times of payment were extended until the 31st of the next December, with a note of defendant appended, agreeing that all payments made by him should he forfeited if the postponed payments should not be made at maturity. Also the following letter:— “Philadelphia, December 27th 1864. “Wm. H. Horner, Esq. “ Dear Sir: Circumstances rendering it expedient that a further extension for about ninety days of the time of payment of the purchase-money falling due on our contracts should be had, I have deputed James R. Booth, Esq., to see you on my behalf, and arrange the matter with you for a reasonable bonus to be agreed on between you, and which he will hand you. “ I trust you will feel disposed to grant me this accommodation, and oblige Very respectfully yours, “E. R. Jones.” Also an agreement between Horner and Jones reciting the article of October 24th 1864, and proceeding as follows:— “And whereas the said John W. Horner, attorney in fact aforesaid, at the request of the said Edward R. Jones, and in consideration of the sum of $1000 to him paid, by agreement dated the 25th day of November, A. d. 1864, extended the time for the payment of the said sums of three thousand five hundred dollars and five thousand dollars respectively to the 31st day of December instant. “Now these presents witness that I, the said William H. Horner, attorney in fact aforesaid, at the further request of the said Edward R. Jones', and in consideration of the sum of [two thousand] dollars this day paid to me, do hereby covenant and agree with the said Jones that the time for the payment of the said sum of three thousand five hundred dollars and five thousand dollars respectively shall be further extended and postponed to the 1st day of March, A. D. 1865, in lieu of the said 31st day of December instant. And I further agree that nothing herein contained shall be construed to invalidate the said first recited agreement, but that the same, subject to the alteration hereby made, shall be and remain in full force and virtue. Witness our hands and seals this [thirtieth"] day of December, A. D. 1864. “ Attest, . “ Wm. H. Horner, [seal.] “Jas. R. Booth.” “Edw. R. Jones, [seal.]” The plaintiff then, under objection and exception by the defendant, gave the note in evidence. The plaintiff having closed, the defendant gave much evidence for the purpose of showing a failure of title in the contract of October 24th 1864. The court charged:— “ I reserve the question, Whether upon the papers given in evidence, the jury ought to be directed to find for the defendant, as showing that plaintiff has no title to recover on the note, and I instruct you that if you find that the defendant authorized Mr. Booth to give the note sued on, or if he subsequently ratified the giving of it by his agent, you will find a verdict for the plaintiff; and on the contrary, if you find that he did not authorize it, you will find for the defendant.” The jury found a verdict for the plaintiff for $750. Judgment was afterwards entered for the plaintiff on the points reserved by the court, Sharswood, P. J., delivering the opinion:— “ The point reserved in this case arises on this state of facts. The plaintiff and defendant had executed articles of agreement by which the plaintiff agreed to sell certain oil rights or leases in West Virginia, and the defendant agreed to make certain payments at certain times. As the time approached the defendant found that it would be inconvenient to meet the payments, and an agent was sent to arrange with the plaintiff for an extension of the time. He succeeded, plaintiff agreeing to extend the time in consideration of defendant’s note for $750, which is the note now in suit. The defence set up is an alleged defect in. plaintiff’s title, and that depends on a very nice question of the onus of proof. “ We do not, however, deem it necessary to go into that question, as we are clearly of the opinion that this case falls within the principle of Stroop v. Ransom, 10 Watts 297, and Roland v. Tiernan, 8 W. & S. 193. t The consideration of this note was entirely collateral to the articles or principal agreement. The defendant stipulated simply for an extension; he received it and enjoyed it; and the note now sued on must be considered as a mere substitute for so much cash, the time of payment being postponed for the defendant’s convenience. If the cash had been paid it could not have been recovered back on the final failure of the plaintiff to make a good title. The delay to sue, and the waiver of all right to forfeit previous payments, would of themselves be a sufficient consideration for the note. On a promise founded on a forbearance to sue, it is not necessary that the right to recover should be established. A colorable claim is all that is required. ‘ A compromise of a doubtful title,’ says Chief Justice Gibson in Hoge v. Hoge, 1 Watts 216, ‘when procured without such deceit as would vitiate any other contract, concludes the parties, though ignorant of the extent of their rights.’ In O’Keson v. Barclay, 2 P. R. 631, the Supreme Court held that the compromise of an action of slander, in which the words laid in the declaration were not actionable, was a good consideration for a note for the payment of money.” The defendant took out a writ of error, and assigned for error— receiving the note in evidence, the charge of the court, and entering judgment on the point reserved.