Riggs v. Tayloe

(nem. con.) also refused to receive the parol evidence on the ground that it had been, at the former trial, received without objection.

The jury found a verdict for the defendant. The plaintiff took a bill of exceptions, and the judgment was reversed by the Supreme Court, 9 Wheat. 483, and the cause was sent back by mandate, directing a vmire de novo, and again came to trial the present term, (May 1826,) and the plaintiff offered the following evidence subject to the objections of the defendant to the admissibility of the evidence as it should be delivered.

1. The testimony of William Hebb, who stated that “ he found *690the plaintiff and defendant sitting at the directors’ table, and the defendant said to him that he was glad he had returned ; that the plaintiff was about to buy out his stock and requested him to take a seat and be an evidence to the contract; upon which the plaintiff asked the defendant what were his terms ; and the defendant answered he would take par, with the dividend which should be declared at the next periodical term, which he said he thought would be four per cent.; that the plaintiff then said he supposed he only meant the interest accrued down to that'time ; •to which the defendant assented. The plaintiff then took his pen and made the calculations and said it amounted to three per cent, on that day. The plaintiff said it was a heavy purchase and if the defendant would allow him a few days to consult his friends he would take it on these terms. The defendant then asked the plaintiff to draw up a memorandum, in writing, of the agreement, which he did. The plaintiff read over the writing hastily in the presence and hearing of the defendant and the witness; the defendant approved of it, and said he would get Mr. Washington to copy it, and each could have one ; the defendant brought the original paper back with the copy taken by Mr. Washington; both parties signed each paper, and the witness attested the same as a subscribing witness ; each took one.” “ The witness does not recollect the phraseology of the writing as to the payment of the money, but recollects • that it bound the defendant to transfer the stock if plaintiff decided to take it in a certain number of days, which he believes was three or five, but does not recollect which. He believes the paper contained the verbal contract as the parties had made it, as the witness has before stated it. Witness continued a director till after the next dividend day, and no dividend was made.” “ The witness being asked on his cross-examination, whether the writing which he has mentioned was in the following terms, or terms to this effect, as read from the deposition, of Lawrence Washington: I bind myself to receive, at any time within three days, three per cent, advance upon my stock in the Central Bank of Georgetown and Washington; ’ and if not, wherein these terms differ from the writing as recollected by him; said, in reply, that “ the writing, as recollected by him, was the reverse of the terms above propounded, inasmuch as the writing, described by him, bound the defendant to transfer the stock.”

The witness being further cross-examined, says, “ he does not think the writing mentioned the quantity of stock, which had before been ascertained; that he does not recollect whether the written contract expressed that par was to be paid for it, nor that any advance upon the stock was specified in the contract: *691he does not recollect how it was expressed, but his impression and belief is, that the understanding of the parties was that three per cent, was to be paid upon a contingency that the next dividend amounted to four per cent, and that the written contract was to the same effect.”

The plaintiff then offered the evidence of Francis Dodge and William Thompson, who testified that “ on the 20th of May, 1818, the defendant transferred to the plaintiff 7462 shares in the stock of the said Central Bank, which at par amounted to $63,427 ; and that on the same day the plaintiff paid the defendant $21,029.81, and retired the defendant’s stock-notes by substituting the plaintiff’s stock-notes to the amount of $44,300. That on the 26th or 27th of the same mpnth, Francis Dodge succeeded the defendant as president of the said bank, and from that time the defendant took no part in the direction of its affairs; that the then next stated day for making dividends, by thé charter, was the first week in July, 1818, and no dividend was then declared on the capital stock of the said bank.” “ The defendant waived so much of his objection to the said evidence of Dodge and Thompson, as required the production of the books, and other documents, by which the facts, stated by those witnesses, are proved, relying upon the inadmissibility and incompetency of the facts so offered to be proved.”

And upon the evidence, so offered as aforesaid, the plaintiff claimed to recover, in this action, the advance, so stated to have been paid by him, upon the stock ; that is the difference between the par value and the sum paid, equal to $1,902.81, with interest.

Whereupon the defendant objected to the admissibility and competency of the said evidence, in the terms so offered as aforesaid, to sustain the first count of the plaintiff’s declaration.

But the Court

decided, that the same was admissible and competent to sustain the said count, and the same was given to the jury.

The defendant then objected to the admissibility and competency of the said ■ evidence, to sustain the second count, and prayed the opinion and decision of the Court that the said evidence was not admissible and competent to sustain the said second count; —

But the Court (Cranch, C. J., contra,) overruled the said objection and prayer, and admitted the said evidence under the second count also.

The plaintiff having given to the jury the evidence so offered by him, and having thereupon rested his case, the defendant, by the consent of the parties, read to the jury the deposition of Mr. Lawrence Washington, the person referred to in the testimony of Mr. Hebb.

*692Whereupon the defendant prayed the Court’s opinion, and instruction to the jury, as follows: —

That the evidence so given by the plaintiff as aforesaid, either taken by itself, or in connection with that of the defendant, is not competent and sufficient to be left to the jury, as evidence that the said written contract continued to be executory after the transfer of the stock by the defendant to the plaintiff, and the payment therefor by the plaintiff, as stated in the plaintiff’s said evidence; nor that it contained any stipulation or condition that the 3 per cent, advance upon the said stock was paid or agreed to be paid by the plaintiff upon a contingency that the next dividend amounted to 4 per cent., or that the defendant should refund to the plaintiff the 3 per cent, advance upon the par value of the stock, paid by the plaintiff as aforesaid, in the event of there being no dividend declared upon such stock at the then next ensuing regular period for declaring such dividend.

But the Court (Cranch, C. J., contra,) refused to give the said instruction, as prayed; “ being of opinion that so much of the said contract as relates to the advance of the 3 per cent, portion of the dividend is executory, in so far as regarded the implied assumpsit of the defendant to refund the said 3 per cent, advance in the event of their being no dividend on the dividend-day.”

The plaintiff then prayed the opinion and instruction of'the Court to the jury, that if from the whole evidence aforesaid, the jury should be of opinion that the defendant in his written contract respecting the stock, did agree to sell his stock at par, and to take the earnings which the stock had made in lieu of the dividend which he stated and represented would be declared at the next dividend-day; and if the jury should be further of opinion that the plaintiff did actually advance to the defendant the amount of the said supposed earnings of the stock, under a belief, created by the defendant, that such dividend would be made, that then the plaintiff would be entitled to recover back the money so paid under such mistaken impression, if the jury should find from the evidence, that there was no such dividend declared, and that the said stock had not, at the time of such contract, earned any such supposed interest or dividend; which instruction,

The Court (Cranch, C. J., contra,) gave as prayed.

Bills of exception were taken, and the verdict being for the plaintiff, the defendant sued out a writ of error, and the Supreme Court of the United States reversed the judgment, and by mandate ordered a venire de novo. 1 Peters, 591.