Dent v. King & Coombs ex rel. King

[202] By the Court N.isbet, Judge. The firm of King and Coombs, the defendants in error, and James P. Dent, the plaintiff, were interested, as part owners of the steamer Charles Downing. There were also a number of owners besides. King and Coombs were- the agents of the company owning the steamer. She, requiring repairs, one Willink was employed to repair her ; and having received a part of his pay, detained the boat for the balance. In this state of the case, King and Coombs and James P. Dent agreed in writing to pay the amount due Willink. A part of this balance being paid, Willink sued King and.Coombs and Dent, upon their agreement, and obtained judgment against them. King and Coombs, having paid the judgment, brought suit against Dent for his moiety of the debt. Upon, the trial, plaintiffs read in evidence the judgment, and proved payment of it By themselves. The defendant introduced a witness, (Willink,) who -proved' that King and Coombs and Dent were part owners of the steamer ; that King and Coombs were the agents of the company, and at the time that they and' Dent assumed the payment of his debt, they promised witness, and such was the distinct understanding at the time, that they would pay witness $500 on the arrival of the boat at St. Augustine, and the balance from the first earnings of the boat.” It was further in evidence for the defendant, that only a part of the $500 was paid, and that Willink was not paid out of the first earnings of the boat. Under this state of facts, the defendant claimed that he was not liable to contribution, because Willink was not paid from the first earnings of the boat, in pursuance of the understanding. The judge of the court below charged the jury, that the record of the judgment against plaintiff and defendant was the highest evidence of their joint indebtedness to Willink; and that the agreement of Dent and King and Coombs with Willink, that he should be paid out of a particular fund, could not affect the case, as the application of the fund' to the payment of other debts of the parties was a violation of the contract with Willink, and as much the act of Dent as of King and Coombs — King and Coombs being his agents*. Upon the opinion of the court upon these two points, the errors are assigned. After the jury had been charged with the ease, and had retired to their room, one of their body came into court, in two several instances, and made inquiry of the court,it being then in session, as to points involved in the cause. The plaintiff in error also claims the right of having a re-hearing, upon the alleged improper intercourse between the court and jury, after the cause had been committed to them. This court are of opinion that there is no error in the charge of the court below, as to either of the points stated; and farther, that the communication complained of between the court and jury, after the latter had been charged with the cause, and had retired, is no good ground for a new trial. There fian be no doubt, hut that the judgment in favor of Willink against King and Coombs and Dent, is the highest evidence of a joint indebtedness from them to him ; and to this extent, and no farther, does the decision of the court below go. The record proves this with absolute verity, and cannot be gainsayed as to that fact. The judgment gives the plaintiff a right of collecting Ms debts out of each and all of the defendants. [203] If a plaintiff in an action ex contractu recover judgment against several defendants, and one pay the whole demand, the law gives him an action for money paid against the others for contribution. Defendants, standing in aiqualijure, are bound to contribute. This doctrine, however, does not apply to judgments against several, in an action of tort.— Chitty on Contracts, 180; 1 Camp. 343, 345; 2 Camp. 452; 2 John’s. Ch. Rep. 131; 1 Randolph, 38. A right of action therefore exists in favor of King and Coombs against their co-defendant Dent. And although we hold that the judgment is the highest evidence of a joint indebtedness from the defendants to the plaintiff, we do not hold, that the judgment is conclusive evidence of the right of one having paid it, to receive contribution : it is not conclusive that the defendants are inmquali jure ; it is only prima facie evidence of that right and of that position. The principle of contribution is equality in bearing a common burden ; and this equality inav depend upon the circumstances and relations of the parties, anterior to the. judgment. Hence, we believe the court did well to admit evidence of the transaction between King and Coombs and Dent, and Willink, at tho time the former assumed the debt to the latter. We think the court too was right in its judgment of the effect of the testimony, in relieving against the presumption of liability to contribution raised by the judgment against Dent. Wo hold that the testimony does not rebut the presumption thus raised. How far a distinct contract between King and Coombs, and Dent, the former being agents of the company owning the steamer, to the effect that the debt to Willink should be paid out of the first earnings of the boat; and a violation of that contract, on their part, would go to relieve Dent from liability to contribute, it is not necessary for us to determine, inasmuch as no such contract is proven. All in relation to this matter, that is proven, is a promise and understanding between King and Coombs and Dent, of the one part, (to use the language of the indenture,) and Willink, of the other part, that $500 of the debt should be paid when the boat arrived at St. Augustine, and the remainder out of the first earnings of tho boat. This understanding was broken, it is true; but not alone by King and Coombs, but also by Dent. By Dent, in two points of view : First, by him, because he was in fact a parly making the promise to Willink, as well as King and Coombs, and it was his duty to see to it, as well as they, that the promise was fulfilled ; and, second, by him, because King and Coombs, being agents for the company owning the boat, and he being a member of that company, their act, in violating the understanding, was his act. Tho act of the agent is the act of the principal. The testimony, therefore, was correctly ruled not to affect the case in the. court below. It is the policy of the law to maintain the trial by jury pure, and hence the decisions have gone a great way in granting new trials for misconduct on the part of the jury. And for the same reason, as well as to keep the respective offices of tho court and jury distinct, and hold the jury aloof from all chances of undue influence from the court ; all intercourse between the court and jury, in the recess of the court, and without the knowledge and approbation of parties or their attorneys, has been discouraged. The case relied upon by the counsel for the plaintiff in error was determined upon these principles. There a new trial was granted because [204] the judge wrote a note to the jury about the case, with, which they had been charged, after the court had adjourned. — 1 Pick 337. The facts of the case before us do not bring it within the principle of the case in 1 Pick. Here we find no improper conduct on the part of either the court or the jury. Nothing is more common, and, in our judgment, more proper, than for the jury, by a committee of one or more of their body, to communicate with the judge, relative to the cause, in open court, and in the presence of the parties or their attorneys and the world. The publicity of the communication guards it from all objection, as well as all impropriety. Let the judgment of the court below be affirmed.