Emery v. Hobson

Appleton, C. J. This is an action of assumpsit against the defendant, for so much money paid and expended by the plaintiff to the use of the defendant, at his request. To support the declaration, the plaintiff introduced a check, signed by Joseph Hobson, payable to the defendant-or his order, and by him indorsed “waiving demand and notice,” payment of which had been refused. The check was given for a loan of money by the plaintiff, to Joseph Hobson, in which the defendant had no interest. It is objected that here was not a payment, but a loan, and that no prior existing liability was thereby discharged, and, therefore, that this action is not maintainable. In Lewis v. Campbell, 14 Jur., 396, it was held, in order to maintain an action for money paid, that it is not necessary that the defendant should be relieved, by the plaintiff’s payment, from a liability to a third person. In Brittain v. Lloyd, 14 M. & W., 762, it was argued that this form of action could not be maintained unless the effect of the payment was to relieve the defendant from some liability for the amount to the party to whom payment was made, and that otherwise it could not be “money paid for the defendant’s use; ” and reliance was placed upon the case of Spencer v. Parry, 3 Adol. & Ell., 331, to sustain this proposition, and we have been referred to the same authority by the learned counsel for the defendant in the present case. Referring to that case, Pollock, C. B., says : “This proposition, however, is not warranted by the decision of Spencer v. Parry, though some expressions in the report of the judgment give a countenance to the argument of the learned counsel; nor can the proposition be maintained; for it is clear, that, if one requests another to pay money for him to a stranger, with an express or implied undertaking to repay it, the amount, when paid, is a debt due to the party paying from him at whose request it is paid, and may be recovered as a count for 'money paid; and it is wholly immaterial whether the money is paid in discharge of a debt due to the stranger, or as a loan or gift to him; on which two latter suppositions the defendant is relieved from no liability by the payment. * * In every case, therefore, [595] in which there has been a payment of money by a plaintiff to a third party, at the request of the defendant, express or implied, on a promise, express or implied, to repay the amount, this form of action is maintainable.” The payment to Joseph Hobson is fully proved. The request to pay, and the promise to repay is inferable from the defendant’s indorsement. The indorsement was made with a full knowledge of all the facts, and before the plaintiff received the check as a completed contract. The loan to the maker of the check is alike the consideration for his signature as for that of the indorser. No other consideration is necessary than the loan to the maker thus made, upon the joint credit of the parties to the check. Bickford v. Gibbs, 8 Cush., 154; Colburn v. Averill, 30 Maine, 310; Simons v. Steele, 36 N. H., 73. The defendant indorsed the check “waiving demand and notice.” An indorser who waives demand and notice is not entitled to any demand on the maker and notice of non-payment. Woodman v. Thurston, 8 Cush., 157. Defendant defaulted. Walton, Dickerson, Barrows, Daneorth and Yirgin, JJ., concurred.