This case throws some light on the conduct of business in Boston in the middle 1760's,
but it is primarily of interest for the pleading problem which it presents. James
Apthorp, younger son of a leading Boston mercantile family, and William Gardiner,
in the course of breaking up their business partnership in 1763, had made an agreement
under seal which provided among other things that Apthorp would “pay all debts that
are now or may hereafter become due from said company to any person or persons whomsoever
for any matter, cause or thing whatsoever, and [would] forever hereafter indemnify
and save harmless the said William Gardiner, his Executors and Administrators, of
and from all debts and demands now due or that hereafter may become due from said
company on any account whatsoever.”
1
Apparently Apthorp had not succeeded in meeting all of the “company's” obligations,
for early in 1765 Trecothick & Thomlinson, London merchants, advised Gardiner that
his old firm owed them £6949 7s. 11d. sterling, plus interest. The letter pointed
out that no remittance had been received on the account, “Mr. Apthorp's efforts having
as we apprehend been bent to reduce other ballances,” and added that “we have good
reason to believe that the greatest part if not all the other demands on Messrs. Apthorp
& Gardiner are paid off.” This rather knowing tone is perhaps explained by the fact
that the Apthorp family had had a long commercial and personal relationship with Trecothick
& Thomlinson. Apthorp's father and brother were at different times in partnership
with the firm, and his sister Grizzel was married to Barlow Trecothick, once a Boston
merchant, soon to be Lord Mayor of London.
2
In 1766 Gardiner brought suit against Apthorp in the Suffolk Inferior Court, alleging
that the “demand” from Trecothick & Thomlinson was a breach of the foregoing covenants,
in that “the said James though requested hath not paid all the debts that were then
and
[are] now due from the company nor hath he the said James though requested indemnified
and saved harmless him the said William of and from all debts and demands that were
then ... and are now due from said company ... and the said William is still held
and obliged to pay the
[debt] and never discharged or indemnified therefrom by the said James ... to the damage
of the said William as he says the sum of twelve thousands pounds lawful money of
Great Britain” (
Document I).
{ 175 } Apthorp's plea to the declaration was a form of specific traverse technically known
as
non damnificatus, in which he asserted “that the said William hath not been damnified by any demand
made upon him by Messrs. Trecothick & Thomlinson or in any manner” (
Document II). Gardiner demurred to the plea in a lengthy special demurrer (
Document III). The gist of his attack was that the plea did not answer the separate allegation
of a breach of the promise to pay debts. In the alternative he asserted that if the
plea were taken as an answer to this breach, it was bad because it was not a direct
contradiction of the allegation. It thus violated the rule that pleadings must not
be argumentative and must not contain a “Negative Pregnant.”
3
After several continuances the court in July 1767 found for Gardiner on the demurrer.
4 On appeal to the Superior Court the point was argued again at the March term 1768,
with Robert Auchmuty and James Otis appearing for Gardiner, and Samuel Fitch and Jonathan
Sewall for Apthorp. Although Adams was not of counsel, the questions involved apparently
interested him greatly, for he made extensive minutes of the arguments and of the
court's ruling (
Document IV). That his minutes were taken down on the spot appears in the verbatim phrases from
cases read to the court by counsel, which Adams copied with a keen ear, but often
without regard to relevance.
The issue argued was a rather fine point of pleading, but it is a good demonstration
of the way in which such heroic struggles over form could often represent the actualities
of the case. In pleading
non damnificatus, Apthorp was trying to put in issue the only point which he could hope to establish
on trial, that Gardiner had not been harmed because he had never actually paid or
even been sued for the debt due to Trecothick & Thomlinson. Behind the barrage of
technical arguments there thus lay one substantial question: did Apthorp bind himself
only to indemnify and save Gardiner harmless, either by reimbursing him after he had
paid a debt, or by defending any suit brought on it? Or was Apthorp to pay the debts
as they arose? If the former, then
non damnificatus, amounting to performance of the covenant,
5 was a good plea, for Gardiner had in fact been indemnified. If the latter, then the
plea was subject to all the technical defects which Auchmuty ascribed to it.
In spite of Fitch's very modern-sounding argument that, whatever its language, the
real purpose of the agreement was only to indemnify, the court found that, notwithstanding
its generality, the contract embodied a separate promise to pay debts. Since the mere
breach of the promise to pay debts would give rise to damages without a showing of
special harm, the absence of harm would have served no better as a defense on the
trial than it did as a pleading.
On the subsequent trial of the issue of damages, the jury brought in a
{ 176 } special verdict which raised this question in another form. They awarded Gardiner
£12,000 sterling, the full amount set forth in his
ad damnum, if the court found that he was “entitled to recover full damages for the debt ...
though [he] was not actually sued therefor nor paid the same.” If he was not entitled
to full damages, then the jury found that he should receive the amount of the debt,
plus interest, which amounted to £8,290 2s. 5 2/3d. At the August term 1768 the court
held that the damages were in the lesser amount.
6 The facts that Apthorp had sought to plead in bar to the action thus at least served
to limit Gardiner to a recovery for the breach of the promise to pay debts, with no
additional damages for a failure to indemnify. While even this result may seem to
give Gardiner a windfall, it is in accord with modern authority.
7
Gardiner's victory seems to have been a hollow one. After a motion for new trial on
the grounds of excessive damages that was either denied or withdrawn, Apthorp's counsel
entered an action of review, which remained on the docket of the Superior Court until
February 1778 when it was finally discontinued by agreement on terms which do not
appear. After the 1768 decision, execution had issued, but the court files show that
it was returned unsatisfied. Apthorp had been declared an insolvent debtor in February
1768 and had apparently succeeded in winding up his affairs in time to evade Gardiner's
demands.
8