Percy v. Clary , 32 Md. 245 ( 1870 )

Brent, J.,

delivered the opinion of the Court.

This action was brought to recover from the appellants, executors of James Percy, certain rents which he had received in his lifetime from the United States Government, for the occupation of the property of Rebecca Clary, the appellee, as a temporary hospital. Among other defences, that of set-off was relied upon. To support it, the appellants offered in evidence the record of a judgment against Rebecca Clary and James Percy, which it was conceded had been fully paid by Percy. This judgment had been recovered against them as co-defendants, by a certain George Clise, for a trespass “ in forcibly expelling and removing him from his dwelling house and close.” The offer was made with a proffer to follow it up by proof, that Rebecca Clary had rented the property to Cliso, who was in possession of it on the 4th of March, 1862, claiming to be entitled to hold it for a year longer; that she went to his house on that day and told his family they must move out immediately, as she had rented the property to the United States for a hospital; that she remained there in the house until the United States troops came and put out the family and furniture of Clise on the same day; that James Percy was not present and that the only proof against him was that he aided her in endeavoring to get the rents of the property, from that time, settled and paid over, and that on such evidence the verdict was rendered against both. They also offered to prove that the counsel employed by Percy, for Mrs. Clary and himself in that suit, and who defended the same, were paid each $100, and that the same was reasonable; that ho also employed the attorney and agent who collected the rents from the United States, and- that Mrs. Clary furnished the attorney so employed w'ith the necessary vouchers to receive the same, and that he, Percy, never received or charged anything for his services in the matter. Upon objection being made, the Court below refused to allow the evidence to be given, and in this refusal the appellants allege there is error.

The recoi’d of the judgment offered shows that it was rendered against these parties as tort-feasors, and having been fully paid by one of them, can the amount thus paid, or any part of it, constitute a sufficient cause of action against the other? The general rule of law is well established, that among wrong doers, there is no contribution or indemnity, Merryweather vs. Nixon, 8 T. R., 186; 2 Grenl. Ev., sec. 115; 1 Par. on Con., 37, and it is very clear that the judgment offered was not admissible unless it comes within some exception to the rule. The authorities cited and relied upon in the argument for the appellants, are cases in which the wrong committed was not in itself illegal, and where the right to recover rested upon the express or implied assumpsit of the defendant to indemnify a party acting by his authority. Adamson vs. Jarvis, 4 Bing., 66; Betts vs. Gibbin, 2 Adol. & El., 57. Adopting these cases, the doctrine to be deduced from them is: first, that the wrong must not be malum in se; and second, that the party claiming contribution must have acted without any design to violate the law, and as the agent or by the authority of him from whom he seeks to recover. In 2 Greenl. Ev., sec. 115, it is said, “the exception is that a party may, with respect to innocent acts, give an indemnity to another, which shall be effective; though the act, when it came to be questioned afterwards, would not be sustainable in a Court of Law, against a third person who complained of it. If one person induce another to do an act which cannot be supported, but which he may do without any breach of good faith or desire to break the law, an action on the indemnity, either express or implied, will be supported.”

Would the evidence offered and rejected in the Court below have brought the present case within the reason and meaning of this exception ? The wrong complained of, and for which damages were given by the jury, was the forcible ejection of a person and his family from their dwelling house. This surely is not in itself an innoceut act, nor can the parties, who committed it, be supposed to have been ignorant that they were acting in open violation of law. The wrong was one of violence and force, no less so than if it had been an assault and battery of the person. It was committed in disregard of the peaceable and quiet possession and enjoyment of property, which is guaranteed by the law to every one, and is clearly of those wrongs for which the law holds each wrong-doer fully responsible, refusing its aid to enforce any contribution among those engaged in its perpetration. The evidence, with which it was proposed to follow up this judgment, gives no additional strength to the offer. Its whole tendency is to show that Percy had no connection or part with the appellee in the wrong, which the verdict of a jury has determined and settled, they had jointly committed. It excludes any idea that he had acted in the matter by her authority and any presumption of an assumpsit on her part to indemnify him. But it was earnestly argued, that the appellants had a right in this action to go behind the verdict and judgment, and inquire into the testimony given npon the trial, to show that Percy had not committed the wrong complained of. To this position we cannot assent. The verdict and judgment are conclusive of the questions which were involved. If there was error, the defendants should have corrected it, either by applying for a new trial or exercising their right of appeal. So long as the judgment stands unreversed, it cannot be collaterly questioned or impeached. Bor can the share of each one of the co-dcfendents in the wrong done be measured and parcelled out, so that contribution may be claimed among them, upon the ground that-one wrong-doer is less guilty than the other.

We see nothing to except this case from the operation of the general rule as to contribution and indemnity among wrong-doers, and think the evidence offered was wholly incompetent to establish any claim against the appellee for the money paid by Percy upon the judgment in question.

There is, however, a part of the evidence offered which ought not to have been rejected. It has been settled by repeated decisions of this Court that if any part of the evidence offered is competent and admissible, it is error to reject the whole. The appellants should have been permitted to give proof of the payment by Percy to the attorneys who defended the suit brought against the appellee and himself, and to have claimed, as a set-off, one-half of the amount, so paid, if the same was reasonable, with a proper allowance of interest. Their services are shown by the offer to have been rendered equally in her behalf as in that of Percy. They were the only counsel who appeared and acted for her, and, from the importance of the case, the time it was pending, and the interest which she had and must have felt in its result, it is to bo presumed they did so with her knowledge and assent. Having accepted and received the benefit of their services, she will be held as affirming and recognizing the agency and authority of Percy to employ them for her. It does not distinctly appear from the record whether there was any offer to prove a payment by Percy to the attorney employed by him to collect the rents due the appellee from the United States Government. If there was, this evidence should also have been admitted, as she distinctly recognized his employment by furnishing him with the necessary receipts to enable him to collect the very money for which she is now prosecuting this suit, and the amount so paid allowed to be set-off under the pleadings.

(Decided 4th March, 1870.)

The judgment below will be reversed, and a new trial ordered, that the appellants may have the benefit of such of the evidence rejected by the Court below, as we have stated in this opinion should have been admitted.

Judgment reversed and new trial awarded.