Bank of Beloit v. Beale ( 1860 )

Bosworth, Ch. J.

It will be seen on examining the complaint in the suit of Sweet a. Sherwood, that Sweet’s whole claim is:

(1) For cash advances.........$6,000.00

(2) For 105 sacks furnished....... 52.50

Total........$6,052.50

He credits Sherwood for wool delivered . . . $2,112.30 For 32 sacks returned......... 17.00

Total........$2,129.30

The complaint prays judgment for $3,923.20, with interest from July 14,1858.

The summons states that in case of failure to answer, judgment will be taken for that sum and costs. A summons in that form is proper only “ in an action arising on contract for the recovery of money only.” (Code, § 129, subd. 1.)

The complaint sets forth the contract between Sweet and Sherwood, and alleges, as a breach of it, the refusal of Sherwood to deliver the wool purchased, as well as his refusal to refund the money or account for it. By the suit which he brought, he elected to proceed on the contract and claim a return of the money advanced, with interest thereon.

He cannot, on the same facts, have a judgment against Sherwood for the amount of money furnished and interest, and also for the value of the property bought with such money.

By bringing a suit upon the contract, and claiming and recovering a part of the damages arising from a breach of it, the moneys advanced with interest, he repudiates the use which Sherwood made of the money as one which was unauthorized, and absolutely waives all claim of property in the wool bought with it. After such a recovery, he could not maintain trover against Sherwood for converting the wool. *

Such a transaction is, in principle, like that between vendor and vendee, where the latter, by fraud, induces the former to sell and deliver goods on credit. In such a case, if the vendor, with knowledge of the fraud, sues the vendee upon the contract of sale and recover judgment, he cannot, in a subsequent action, based on the fraud, pursue the goods or their proceeds either in the hands of such vendee or of a third person. (Lloyd a. Brewster, 4 Paige, 537.)

It seems to me clear, upon elementary and fundamental principles, that the action which was brought by Sweet against Sherwood, and the recovery of judgment therein, estops Sweet from claiming property in the wool bought with the moneys for which such j udgment was recovered. All causes of action based on the transaction are merged in the judgment recovered.

In addition to this difficulty, which seems to be insuperable, Sweet has so far executed the judgment, that he has Sherwood in custody under an execution against his body, issued on such judgment. This is a satisfaction of the judgment in such sense that while the imprisonment lasts, no proceedings can be taken against his property to obtain judgment.

The judgment on which he is imprisoned will not be set off against any other judgment in his favor. (Cooper a. Bigalow, 1 Cow., 57.) A creditor’s bill will not lie on such a judgment to reach his equitable estate. (Stilwell a. Van Epps, 1 Paige, 615.) Nor will an action lie against the sureties in a bond given to stay the issuing of an execution ninety days, although conditioned to pay the damages and costs with interest before or at the expiration of ninety days. (Sunderland a. Loder, 5 Wend., 58.)

A consent that the debtor go at large is an absolute discharge of the judgment. (9 Cow., 138.)

I think there is a marked distinction between a case like this, and an owner of a chattel suing one person and recovering against him in trover for converting it, and subsequently suing another person for a separate and distinct conversion of the same property.

In this State it is held that a judgment against one, and his imprisonment without actual satisfaction, is no bar to a subsequent action against the other.* (Osterhout a. Roberts, 8 Cow., 43.)

The rule in- .England is otherwise, and it has recently been held there, as' it was held in Brown a. Wooton (Cro. Jac., 73), that a rectiveiy in trover for a permanent conversion vests title in the defendant by relation from the time of the conversion. (Buckland a. Johnson, 26 Eng. L. & Eq., 328.)

This is not the case of an owner suing a second party for converting his property, after having obtained judgment and execution against another party for a separate and distinct conversion of the same property.

In this case, after Sherwood had sold and disposed of the wool, Sweet, with knowledge of the fact, sued him to recover back the money advanced to purchase it, and recovered a judgment for such moneys with interest; and Beale and Adams; who received the wool from the plaintiff (to whom Sherwood had transferred it) to sell on the plaintiff’s account, instead of paying the proceeds to the plaintiff, paid them to Sweet, and insist that the wool was his, and that they had a right to pay the proceeds to him, he having demanded them as owner.

If the judgment recovered by Sweet against Sherwood estops the former from claiming ownership of the wool as against the latter, it also estops him from making such claim as against the plaintiff.

Beale and Adams’ defence is based solely on the right of Sweet to claim the proceeds of the wool as against the plaintiff; and if he cannot sustain such a claim they have no defence.

I think Sweet’s rights are merged in his judgment, and the remedies provided by law to obtain payment of it; that in contemplation of law it is to be treated as satisfied while the imprisonment of Sherwood is continued, and that the motion for a new trial should be denied.

Motion denied with $10 costs.

* See also Robinson a. Weeks (6 How., 161). Opposed to this doctrine are, White a. Philbrick (5 Greenf., 147); and Campbell a. Phelps (1 Pick., 62); see also Marsh a. Pier (4 Rawl., 286); Murrell a. Johnson (1 H. &. M., 449); and Broom a. Wooton (Yelv., 67). In Curtis a. Groat (6 Johns., 168), it was held, that a recovery in trespass quare clausum fregit, for cutting down wood of the plaintiff, which defendant converted into coal and left on the land, did not transfer the title to the coal to the trespasser. In order that recovery and execution should have the effect of transferring the title, the recovery must be for the specific chattel. To the same effect is Betts a. Lee (5 Johns., 348).