Stoddard v. Gage

May, J. In this case, the presiding Judge being of opinion that the plaintiff’s evidence failed to prove a joint promise by the defendants, as alleged in the writ, ordered a nonsuit; and the question now presented is, whether the exception taken to that ruling and order is sustained. It appears from the evidence reported, that on the 9th of October, 1851, the defendant Gage, in consideration of $3000, paid by the plaintiff, conveyed to him by bill of sale, with covenants of warranty, three-eighths of the brig Abby Jones, and on the same day the other defendants, in consideration of $4000, by a like bill [290] of sale executed by them jointly, conveyed to tbe plaintiff four-eigbtbs of the same brig. On the 5th of July preceding, all the defendants had jointly mortgaged the same seven-eighths of the brig to' one Nickerson to secure their joint bond of that date, conditioned that, if they should pay to said Nickerson $4000, in six months and all bills due to him, the same should be void, and providing that in default of payment the mortgagee might take possession of the mortgaged property and sell the same at public auction. At the time of the sale to the plaintiff he was notified of the existence of the mortgage, and it was then supposed that the debt secured by it would not exceed $4000, and as security against that it was arranged, that three of the notes given by the plaintiff in payment for the brig should be left with Lot M. Morrill, Esq., and the money when paid was to be forwarded to said Nickerson to satisfy his claim. Nickerson’s debt, secured by the mortgage, turned out to be over $6000, and, after this became known, the plaintiff and the defendant Gage got the time of payment extended, each paying a part of the bonus money required for the extension. In the spring of 1853, Nickerson having advertised the seven-eighths of the brig for sale under the provision in his mortgage, the plaintiff paid the amount then due on the mortgage which his notes had failed to pay, being more than $2000. If the case stopped here, it is perfectly clear that the plaintiff’s remedy would be upon the covenants in his bills of sale, and he might have an action upon either or both of them for the money paid to discharge the incumbrances upon the brig which existed at the time of the sale to him. No action as upon a joint promise against the three defendants could be sustained. Does then the other evidence in the case place the plaintiff in any different posture as to his right or remedy ? We think not. The fact that the defendant Gage told the plaintiff, before he paid off the mortgage, to pay it, and “we will settle the balance with you,” could impose no new obligation upon [291] tbe other two defendants, certainly, if Gage was not authorized by them to make any such promise, of which there is no evidence. It would not authorize a joint action against the three defendants. Nor could the fact, that after the payment the plaintiff and these three defendants submitted the plaintiff’s claim to referees, change the nature of the plaintiff’s claim, or of the defendants’ liability without an award. The case shows that no award was made by the referees. They simply recommended to the defendants to pay to the plaintiff the sum of $1873,22, as of the 7th day of May, 1853, and a few days after the defendants did pay a part of said sum, the balance still remaining unpaid. What they did pay, so far as the case discloses, seems to have been paid in consequence of the recommendation of the referees, which was addressed to their discretion, and such a payment cannot properly be regarded as changing the legal rights of the parties. In view of the whole evidence, we think the plaintiff’s remedy is upon the covenants in his bills of sale, which will afford him ample relief, and that there is a misjoinder of the defendants in this suit. The exceptions are overruled • and the nonsuit is to stand. Tenney, C. J., and Appleton and Cutting, J. J., concurred.