[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 350
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 351 It appears by the case that the plaintiff, on the trial of the issues, introduced sufficient evidence to prove the ownership and possession of the bonds in question by Aaron Richardson on the thirtieth day of January, 1865; that he on that day deposited them with the defendant and left them in his possession; that he afterwards, and on the fourteenth day of March, 1865, for a good and valuable consideration, sold and assigned the same and the money secured thereby to the plaintiff in this action; that the plaintiff after such sale and transfer to him and before the commencement of this action demanded the said bonds, each and all of them, of and from the said defendant, and that he refused to deliver them.
After that proof had been so given by the plaintiff, he rested his case, and the defendant then offered and introduced testimony tending to sustain and establish the several allegations in his answer. It was thereupon objected on the part of the plaintiff, among other grounds of objection thereto, that the agreement in relation to the deposit of the said bonds was void within the statute of frauds, being a special promise or undertaking, by parol and not in writing, to answer for the default or miscarriage of another person. This objection was well taken. The plaintiff's title to the bonds was clearly established by the evidence introduced by him; and although it also appeared that his assignor, while owner thereof, had deposited them with the defendant and left them in his possession, it was not shown that they were so deposited or left with him as provost marshal or as a public officer, or otherwise than in his individual capacity, as a mere naked bailee thereof, holding the same as the plaintiff's property, subject to his control and disposition thereof, and having himself no interest therein, either personally or as trustee or otherwise, or any right whatever, to retain the same in hostility adversely to the claim or demand of the plaintiff. It, therefore, was incumbent on him to show a right to retain them, and a justification of his refusal to deliver them to the plaintiff on his demand thereof. This he undertook to do by *Page 354 proving the agreement in question; which was an undertaking or obligation on his part that the enlisted men should go forward to the place of rendezvous, and that they would not, before reaching there, desert the service. Such an agreement, to be of any validity, must be in writing; and that in question being verbal only, was not admissible as evidence, and having been given against the exception of the plaintiff was insufficient to give the defendant an interest in the said bonds or any right to retain the possession thereof. (See Rice v. Peet, 15 Johns. Rep., 503.)
To overcome the force and validity of that and some other objections urged against the claim of the defendant, the learned judge who tried the issues has found that "the said agreement was fully executed before the commencement of this suit, and nothing remained to be done by either party to consummate and give effect thereto," and in his opinion, to support the finding, he says, "the obvious answer to these suggestions is, that this is not an action upon the agreement. If it was, there might be force in the objection; but after a party has voluntarily performed an agreement, it is too late for him to urge, either that it was not attended by those formal solemnities to a perfect execution which the law requires, or was not upheld by a sufficient consideration. The party waived all these, even if he might originally have insisted upon them, by doing the thing which he contracted to do; and his locus penitentiæ, if he ever had any, has long since passed." This, with all proper deference to the opinion of the learned judge, is not an "obvious answer," but is specious, and does not, in fact, answer the objection. It is true, as he says, that this is not an action upon the agreement; but the whole defense of the defendant is based thereon, and without it he was, as before stated, a naked bailee of the bonds, and had no ownership or interest therein, or right to retain the same adversely or in hostility to the demand of the plaintiff. It is the only foundation on which he claims to hold them, and in principle the case is the same as if the defendant was seeking by action to foreclose the plaintiff's right thereto, and bar him from all interest *Page 355 therein, or claim thereto, and upon the judge's own hypothesis there is "force in the objection." Nor is the position that the agreement was "fully executed," and that the plaintiff has "voluntarily performed" it, warranted by the facts. The agreement under which the bonds were deposited, and necessarily including the terms and conditions of the deposit, was entirely executory in its nature and character. It was substantially to the effect that the persons enlisted would not desert the service before reaching the rendezvous, and in default thereof that the bonds, to the amount of $550 for each man deserting, should be forfeited. The plaintiff has done nothing more than to make the agreement. He has not since or subsequent to making it, in any manner performed any act or consented to or acquiesced in anything whatever by which he has relinquished his ownership of the bonds, or any of them, or a right to a return thereof. If he had, after the desertion of the men, or any of them, made a settlement or arrangement with the defendant, by which he gave up the bonds or any of them, then there would be ground for holding that he had voluntarily performed the agreement, and that it had been executed to that extent, and he could not afterward set up the invalidity of the contract, originally or in its inception, for the purpose of recovering back those he had so given up.
The views above expressed show that the defendant has failed to establish a right to detain the bonds in question, and, consequently, it is unnecessary to consider the other questions discussed with great ability by counsel on the argument.
It follows that the order appealed from must be affirmed with costs, and judgment absolute must, under the defendant's stipulation, be entered against him with costs.