Wright v. Butler , 6 Wend. 284 ( 1830 )

The following opinion was delivered :

By the Chancellor.

The testimony was sufficient to take the case out of the statute of limitations, as all the payments were made to the bank by Butler within six years after the promise of Wright to pay the demand as fast as he could, and before the statute of limitations had attached. This suit was brought within six years thereafter. If Butler had not paid these sums until after the statute had actually run as against Wright, it would have presented an entirely different question ; it could hardly have been said in such case that money had been paid by Butler for the defendant, if it had been paid on a demand for which the latter was no longer liable, either to the endorsee or to the bank.

The evidence of the demand and notice of non-payment was, under the circumstances, sufficient to authorize the jury to find that the demand of payment of the note was regularly made, and that notice of non-payment was given to the endorsers. Again ; the record of the former recovery between these parties, in which the same question necessarily arose and was decided by the jury, was in evidence ; and this alone was sufficient, if not conclusive, to establish the fact of demand and notice. 4 Haywood, 208. 2 Wash. Rep. 64. 2 Hen. & Munf. 55. 5 Conn. Rep. 550. In actions where the former recovery can be set up in pleading by way of estoppel, the party must plead it, or it will not be conclusive upon the jury in the second action; but in actions of assumpsit, &c. where the party has no opportunity to plead the former verdict as an estoppel, the record thereof may be given in evidence, and is conclusive and binding on the party, the court and the jury, as to every fact decided by the former verdict. 1 Salk. Rep. 277. 17 Serg. & Rawle, 319. 3 Cowen's R. 120.

If the plaintiff was entitled to recover on the money counts In the first suit only for the amount which he had then paid, that recovery can be no bar to the present action, which is for an entirely different debt, although it grows out of the same transaction. That recovery was as for so much money paid for the defendant at his request, and no more could be recovered than the plaintiff had actually paid at that time. The request is implied from the situation of the parties, and from the legal liability of the defendant to indemnify the plaintiff, or to repay him whatever he might be liable to pay on the note; but the implied promise, which was the foundation of the first suit, was to pay the amount which he had then paid, Et is like the case of principal and surety, where the request to pay is implied from the legal liability of the latter, incurred for the benefit of the former. The moment the surety has been compelled to pay any thing on account of the suretyship, he may bring an action for money paid, and the law raises a promise "to repay the amount; but it does not raise a promise to pay any farther amount until he has been compelled to pay more, as it cannot then be known that the principal will not himself prevent the necessity of farther payment. Whether in such a case the court would permit several actions to be brought, where all the payments had been made previous to the commencement of the first suit, is not necessary to be determined in this cause. The defendant always has it in his power to prevent any suit by paying what is due, if he is solvent; and if he is irresponsible, there is very little danger that those who have been obliged to pay money on his account, will risk the chances of further loss by bringing several suits, when one is sufficient to obtain the demand.

The only remaining question is the one which was involved in the decision of the first suit. At the time of that decision, this was certainly a new question; and Justice Platt, who differed from the rest of the court, hesitated on account of there being no precedent for such a recovery; but since tha.t time the same question has arisen in the court of king’s bench in England, and has been decided in the same way. In Pownal v. Ferrand, 6 Barn. & Cress. 439, the holder of a bill sued the acceptor and endorser, in separate suits, and obtained judgments against all. Pownal, the endorser, paid ¿£40 towards the bill, and the residue was collected on an execution in the suit against the acceptor; and the court held that the endorser might recover back the ¿£40, in an action for money paid for the use of the acceptor. In the recent case of Cole v. Cushing, 8 Pick. Rep. 48, the supreme court of Massachusetts permitted the first endorsee of a note to recover against the maker, who had signed it merely for the accommodation of the payee, although the defendant was in gaol, on execution at the suit of a subsequent holder, at the time of the suit by the endorsee; the latter having actually, paid the amount to the holder. If the plaintiff had been the legal owner of the whole of the note at the time this suit was commenced, so as to have been in a situation to strike out the subsequent endorsements, and recover against the prior endorser in the usual manner,.by a special count on the note itself, I think this suit for money paid for the use of the defendant and at his request, could not have been sustained. These actions on the money counts are resorted to as substitutes for bills in chancery, and ought to be encouraged whenever the law affords no other remedy, and where a court of equity would compel the defendant to repay to the plaintiff a sum of money which the latter, had been compelled to pay for his benefit. The recovery in this case has been sustained by the supreme court on that principle, and I think their judgment should be affirmed. /

It being the unanimous opinion of this court that the judgment of the supreme court ought to be affirmed, it was affirmed accordingly.