Massey v. Schott , 1 Pet. C.C. 132 ( 1815 )

WASHINGTON, Circuit Justice

(charging jury). This is an action of debt, brought upon a bond, with a collateral condition; and therefore the plaintiff cannot recover any thing, but what he is entitled to, upon a breach of that condition. The condition is; that the defendants should discontinue their suit against the plaintiff; should endeavour to obtain a discontinuance of any suits in England, against Pearson, Hodgson and Massey, in consequence of any orders of Davidson. or of the defendants; to indemnify said Pearson. Hodgson and Massey, and every of them, against any damages they might sustain by legal compulsion, in consequence of any suit brought in England, or elsewhere, against them, by virtue of any order given by Davidson, or by the defendants, or in consequence of any foreign attachment, levied in their hands, by any creditor of Davidson; and to indemnify them against all damages they might sustain, by reason of a double payment of the balance. It is admitted, that there has been no breach of the two first parts of the condition; nor has any attachment been levied; neither was the over payment made on the 27th July, 1810, by compulsion of law, in consequence of any suit brought against Pearson, Hodgson and Massey, or by virtue of any order, given by Davidson, or the defendants; nor was such over payment a double payment, that being the first payment, and the payment into the banks doubled it, so far as it went. But, as. to the difference between the sum paid on the 27th July, 1810, and that paid on the 17th August, into the bank; there has never been any double payment of that sum, and of course, it cannot come under the last clause of the condition. The plaintiff, if he inadvertently paid to the defendants more than his house owed, may recover it back, in an action for money had and received, but not in this action.

As to the second question, it is the opinion of the court, that the action cannot be maintained. The recitals in the condition of the bond, express in most intelligible language, the intention of the parties. The defendants, haying arrested the plaintiff in this country, for the balance due to them, by his house, and held him to bail, had obtained a security, which they were only induced to relinquish, upon receiving payment of what was supposed to be due. But, as it was possible. the house of Pearson, Hodgson and Massey, might be compelled, by legal process, to pay the same money again, to the Bells, or to some other person; or, that they might have paid, or before they could have .notice of the settlement in Philadelphia, might pay, voluntarily, that balance, upon orders drawn by Davidson, or by the assignees: it was but just, that the defendants should indemnify those persons against a double payment, made under any of those circumstances. That this was the design of the parties, is clear, from the recitals; and the condition is precisely accommodated to that intention. The recital, as to the compulsory payment, states that the defendants had agreed to secure Pearson, Hodgson and' Massey, against the event of a double payment of the said claim; which might take place, if they should have been compelled, by course of law, to pay the demand made on them by the Bells. In execution of this agreement, the defendants oblige themselves, to indemnify the said Pearson, Hodgson and Massey, against any damage they may, by compulsion of law, sustain, by reason of any payment, in consequence of any suit brought against them; by virtue of any order given by Davidson, or by the defendants. But the payment made into the bank, was not made by compulsion, or in consequence of any suit brought against Pearson, Hodgson and Massey: but it was made, under an order, obtained upon the prayer of Pearson, Hodgson and Massey, and in a suit in which they were complainants, not defendants. This proceeding was a violation, not only of the words, but of the intention of the parties. The defendants did not admit the claim of the Bells, but on the contrary, obliged themselves, to endeavour to have it discontinued; and that the cause might be defended, they bound themselves from the date of the bond, to pay the costs. Had Massey himself filed the bill of interpleader, and prayed to be permitted to pay the money into the bank, it would have been a gross fraud; in as much, as he would have attempted to deprive the defendants of the security they had obtained by his arrest, and then, by a voluntary abandonment of the cause of the defendants, and a payment of the money, to compel the defendants to restore the security, which they had taken, in lieu of the person of Massey. But although this case is clear of fraud, the payment in England having taken place, in about twenty days after the compromise was made in Philadelphia; still, it cannot for a moment be contended, that a payment made upon the prayer of Pearson, Hodgson and-Massey, and in a suit brought by them, was a payment made by compulsion of law, in a suit brought against them.

As to any voluntary payment, which Pearson, Hodgson and Massey might have made, before the date of the bond; or might make, before any countermand, to be given by the defendants, of such payment, should reach Pearson, Hodgson and Massey in England; the recital states an agreement by the defendants. to indemnify Pearson, Hodgson and Massey, against any payment made to Potter, or to any other person, on behalf of Davidson, or his assignees, in any manner, before those periods. Then comes the condition intended to fulfil the agreement, and it stipulates, to indemnify the said Pearson, Hodgson and Massey from all damages, which they might sustain, by reason of a double payment of said balance as aforesaid. These words, “as aforesaid,” clearly refer to the double payment, mentioned in the recital; that is, a payment made to Potter, or to any other person, on behalf of the said Davidson, or his assignees. But the payment in England. for which this suit is brought, was not made to Potter, or to any other person, on behalf of Davidson or the assignees. Persons claiming on behalf of Davidson or the assignees, could never be persons claiming adversely to them; but it is most obvious, that persons claiming for their benefit were intended. It Is impossible, that the Bells, the only defendants to the bill of interpleader, who claimed adversely to Davidson, or to his assignees, could be intended; because, in the same sentence, but a line or two preceding these expressions, payment by compulsion of law, is expressly referred to the Bells by name. It would then have been absurd, immediately afterwards to permit a voluntary payment to them. It is of no consequence indeed, whether the words “as aforesaid,” refer to the payments mentioned in the recital, or the words “said balance;” because, if they were omitted altogether, the meaning of this part of the condition, is ascertained by the obvious meaning of the recital; both of which refer to voluntary payments. That the words “his assignees,” in the condition, mean the defendants, and not the Bells, or any other, to whom Davidson had given an order to receive the money, is obvious; not only from the preceding words, which in reference to the Bells, speak of a compulsory payment, and consequently, the order of Davidson in their favour, could not. be on his behalf; but, because the defendants are immediately afterwards described in the same words, viz. “the said assignees.”

For these reasons, it seems clear that the plaintiff cannot recover in this action.

The plaintiff suffered a nonsuit.