Smith v. Easton

Brent, J.,

delivered the opinion of the Court.

There can be no question since the decision in this Court, of the case of The Franklin Bank of Baltimore vs. Lynch, 52 Md., 270 , of the right of the appellants to recover under the form of their declaration. The appellee is not sued as an endorser, but the action is brought upon the breach of an alleged promise to endorse.

Two questions arise in the case. The first is the sufficiency of the evidence to establish the promise. The appellants, merchants in the City of Baltimore, having a claim upon open account against William H. Easton, a merchant in Chesapeake City, Cecil County, Maryland, sent their travelling agent and salesman to see Easton, *144 and obtain from him a settlement. He went to Chesapeake City and saw Easton, but was not successful in getting the debt paid. The agent threatened to procure an attachment against the stock of goods in the store, when it was finally agreed that Easton should go over to the telegraph office, near by, and telegraph to his brother in New York, and “hear from him first.” They accordingly went to the telegraph office, when the following despatch was sent to James T. Easton, the appellee:

“Chesapeake City, Maryland,

“February 16th, 1875.

“To James T. Easton, 2 Coenties Slip, New York.

“Smith & Whiting are here, and will attach the stock, unless something is done immediately to secure them.

“William H. Easton.”

On the same day the following telegram, -which was admitted in evidence subject to exceptions, was received at Chesapeake City:

“New York, February, 16th, 1875.

“ To W. H. Easton, Chesapeake City, Maryland.

“ Will endorse your Smith & Whiting note—three months. Best I can do.”

“ J. T. Easton.”

The agent of Smith & Whiting then took the promissory note of Wm. H. Easton at ninety days for five hundred and thirty-one dollars and fifty-eight cents, payable at the First National Bank of Elkton, Maryland, and upon his return to Baltimore delivered it to his principals. They enclosed it to James T. Easton, New York, for his endorsement, but he refused to endorse it, and returned it to the appellants under cover of a letter, dated New York, April 3rd, 1875.

*145 The question raised is the admissibility in evidence of the dispatch purporting to come from Hew York, and offered for the purpose of binding the appellee as promisor to endorse.

The appellants proved under a commission to Hew York City, on April 5th, 1878, that all the messages sent from, and receipts for messages delivered from the office in that city, on February 16th, 1875, had been destroyed.

The message, if any, sent by James T. Easton to that office, to be transmitted to Chesapeake City, was the original, (Scott & Jarnagin, Law of Tel., sec. 357, and authorities there cited,) and not the message which was received over the wires at Chesapeake City. The latter must be considered as a copy, (Ibid. sec. 361,) and carries with it none of the qualities of primary evidence. Ordinarily the usual course is to show the delivery of the original message of the party, sought to be charged, at the office from which it is to be telegraphed, and then show that it was transmitted and delivered at the place of its destination. But even where the original is produced its authenticity must he established. And this either by proof of the hand-writing, or by other proof establishing its genuineness. The destruction of all the messages sent from the office, on the day named, is sufficient foundation for the admissibility of secondary evidence. But this secondary evidence can only be admitted upon proof that the copy offered is a correct transcript of a message actually authorized by the party sought to be affected by its contents.

In Howley vs. Whipple, and others, 48 N. H., 487, a message was sent by telegraph to Montreal, and an answer was very soon received, purporting to come from the party to whom the message was addressed, and to be sent from Montreal. The Court refused to admit it, without proof that it was in fact sent by the proper party. It was contended in this case, that the rule, which per *146 mits a letter to be admitted, as evidence against a party, when there is no proof of the hand-writing, except the fact that, in due course, it had been received in reply to a letter which had been addressed to the same party, should be applied to telegraphic dispatches. While it was thought it might apply to a dispatch in answer to a communication by letter, it was held to be inapplicable to a dispatch received in reply to a communication sent by telegraph. And this seems to be now the recognized law where both the message sent and the answer are by telegraph.

In the case of The United States vs. Babcock, 3 Dillon, 576, the Court refused to allow a telegraphic dispatch to be offered in evidence without proof of the hand-writing of the defendant, or that it was authorized, or sent by him or by his direction. And this we take to be the unquestioned rule.

The evidence in this case clearly establishes the message sent from Chesapeake City to New York, and that a message was sent from New York on the same day purporting to be in answer. But the proof wholly fails to connect the appellee with the latter, or to show that it was sent by him, or by his authority or direction.

The letters which have been offered in evidence, throw no light upon this question, indicating that the message sent was either received, or answered by the appellee. Neither the letter of the appellants, nor those of the appellee are found to contain a single allusion to any promise by telegraph to endorse the note, or to any telegraphic dispatch whatever.

The other question, which has been presented, is the liability of the appellee upon the promise to endorse, assuming that the telegraphic dispatches are sufficiently proved to be submitted to tbe consideration of the jury. Although there has been some discussion in the cases as to whether the dispatch sent to the office to be trans *147 mitted, or the dispatch transmitted and received at its destination is the original, they all agree that a telegraphic dispatch is a sufficient compliance with the Statute of Frauds in its requirement that a promise, like that alleged in this case, should he in writing. This point was not controverted in the argument, and we shall pass it without further remark, as having been conceded hy hoth sides.

The alleged promise of the appellee was to guarantee the debt of an other .already due hy endorsing his promissory note. Such a^guarantee, to carry with it a liability to the payee, is not only required to he in writing, hut it must also he supported hy a consideration. The consideration in this case is the forbearance of the appellants to sue out process of attachment against the stock of goods of their debtor, then in the store at Chesapeake City.

■ In Ecker vs. Bohn, 45 Md., 278 , this Court held, that although forbearance to proceed in bankruptcy against a debtor, constituted a good consideration for the promise of another to pay the debt, yet if the creditor had in fact no right to take such proceedings against his debtor, the consideration failed and no action accrued upon the promise or undertaking. In this case the proof very clearly shows that there was no ground for the process of attachment against ¥m. H. Easton. The appellants and he were residents of the State, and in that case an attachment would lie only for some one or more of the causes assigned in the Act of 1864, ch. 306. The agent states that he was prepared to make an affidavit that Easton was fraudulently disposing of his goods. Upon his cross-examination it appears, that the only disposition of the goods, he knew of or alluded to, was the sale of them in the usual mode of merchants, to customers who came to the store to buy. The goods were in the store for that purpose, and such a disposition of them no Court would hold to be fraudulent. The facts are not sufficient to support an *148 attachment against a resident. Upon motion the defendant would he entitled to an order quashing the writ.

(Decided 29th June, 1880.)

As the appellants, upon the proof in the record, had no legal right to attach, there was an utter failure of consideration, under the authority of the case just cited from 45 Md., for the promise of the appellee, even if such promise had- been established by proof legally sufficient to he submitted to the jury.

The law in our opinion being against the right of the appellants to recover, we think the rulings of the Court upon the prayers jiresented, were without error, and the judgment will he affirmed.

Judgment affirmed.