Morriss v. Wills , 5 H. & J. 120 ( 1820 )

Éárle, J.

delivered the opinion of tbfe court. John B. Wills and William MorHss■, the plaintiff and defendant in this causé in the court below, were indorsers of a promissory note of SI000, in The Farmers Bank of Maryland, drawn by John B. Turner; who became unable to take it up. Being, by a prior understanding between them, equally liable for Turner, they determined to retire this note by giving their own; and according to this resolution their negotiation with the bank took place On the 6th of November, 1816. On that day Wills signed a note of 81000 to Morriss, or order, for value received, payable sixty days after date, and negotiable at The Farmers Bank of Maryland, which note Morriss endorsed to the bank. This arrangement had the express assent of the parties; and they further agreed, that notwithstanding the form of it, each should be equally responsible, and when the money became due each should pay one half of it to the bank. The note was protested for nonpayment, and Wills paid the whole of it to the bank, principal, interest, and cost of protest. This action is brought to recover back one half the money thus paid; and the question is, can indebitatus assumpsit for money paid be maintained for it, without a special count setting forth the particular circumstances of the transaction?

This is not the case mentioned in the argument of a special contract between two persons, where the terms of the agreement had been performed on the plaintiff’s part, and a recovery consequently had on the common indebitatus count only. Wills performed his part of the agreement when he paid a moiety of the debt to the bank, and for this he can claim no remuneration. But when he paid the other moiety also, he did what Morriss was bound, by the understanding between them, to perform, and thence his demand against him. It is the case then of two persons making themselves severally liable for a debt, on a common consideration, to a third person, where one has been compelled to pay the whole. He may support indebitatus assumpsit for one half the debt paid, and need not prove the defendant’s request to pay, although he' is bound to state it in his pleadings. A request is implied, and necessarily arises out of the circumstances of the transaction, where one is obliged to discharge a portion of a debt another is bound to pay.

Ik the opinion of tlie court, a count on a special agree™ mfent was not ¿ecesssry in this case.

JUDGMENT AFFIRMEP,