Brunson v. O'Connor ( 1856 )

Curia-, per O’Neall, «L

We think the verdict was right, and must stand. It will be remembered that this is not an action to make endorsers on an accommodation note liable to one another as co-sureties, as was the case in Cathcart vs. Gibson, 1 Rich. 10; but it is an attempt by setting aside the entry of satisfaction to make the first endorser of the original note and the maker of the last note, refund a sum paid by the last endorser under an arrangement made among the three to produce satisfaction of all the judgments.

The jury were right to conclude that this payment was made in accordance with the original agreement between the co-endorsers..

There is no agreement here to be enforced by action; nudum pactum can have therefore nothing to do with it.

The parties have themselves carried out their agreement, and unless it was shown that this was done by mistake of fact, or of law, as was illustrated by Lawrence vs. Beaubien, 2 Bail. 623, there can be no claim for relief.

The motion is dismissed.

Wardlaw, Withers, Whither, Munro, and G-loyer, JL, concurred.

Motion dismissed.