Thomas v. Brady

Rogers, J. This is an action of assumpsit on a contract of indemnity, the declaration containing special and the common money counts. As the case' comes up on certain specific points, we have nothing to do with the merits, which have been commented on so much at large by both sides, except so far as the points connect themselves with the errors assigned. The case resulted in a verdict for the plaintiff, finding that there was a contract of indemnity and a breach of the contract by the defendant. No less than seventeen errors are assigned, all of which, except those particularly noticed, were abandoned on the argument or are thought unworthy of particular examination or discussion. It is, contended the court erred in admitting in evidence the deposition of William Stockton, a former partner of the plaintiff, and in refusing to strike out his testimony, as evidence for the consideration of the jury. Stockton was undoubtedly primd facie incompetent, for the goods were consigned by Morris, Hollingshead & Co., to the firm of which he was a member, and the suit in Baltimore by Rex, was instituted against him as one of the firm. We cannot, then, resort to his testimony to sustain his competency, for there is no principle better settled than that a witness primd facie incompetent cannot make way for his admission by his own testimony: Griffith v. Reford, 1 R. 196, and other cases. Throwing then his testimony out of the question, does it appear aliunde that the witness was uninterested in the event of the suit — would he gain or lose anything by the result of the verdict? If his testimony goes to increase a fund in which he is entitled to participate, or if he is liable to contribute, he is clearly incompetent: Wilkinson v. The Turnpike Co., 6 Barr, 398. On a view of the whole case, we think no such interest appears as to amount to a disqualification. We view it not as an affair of the partnership, but a transaction with the plaintiff alone, as well in the consignment by Morris, Hollingshead & Co. to Brady, as in the indemnity given by the defendant to the plaintiff. Stockton, who lived in this city with the consignors, one of whom, Hollingshead, was his brother-in-law, was not informed of the consignment, indeed, as appears in the letter of the 20th of August, 1839, was designedly left in ignorance of it. In the letter of that date, E. Brady to Francis Brady, .the former, speaking in relation to the consignment, says “ Stockton is and will be ignorant of this.” The same thing appears in the testimony of Francis Brady, who also proves that the indemnity was given to the plaintiff and not to the firm. The partnership, although existing at the time of the consignment, has been since [168] dissolved, on terms, however, which only appear in the testimony of the witness, and which consequently cannot be taken into account. The witness, therefore, it is clear, is not entitled to any part of the money which may be recovered in the suit. And it would be preposterous under the circumstances for Brady to attempt to make Stockton liable to a contribution for the money he was compelled to pay to Rex. There is not the semblance of error in admitting the records of the suits of Rex v. Brady. They were the foundation on which this suit rests, and areprimd facie evidence of the breach of the contract of indemnity and of the measure of damages. The court was right in refusing- to admit in evidence the letter ' of November 3d, 1843, Edward F. Brady the plaintiff to Abraham Rex. It is not denied that the admissions of a party, either verbally or in writing, before or after the fact, when or wherever made, are competent evidence. Also the admission of an independent fact, although made in an offer of compromise, is evidence. So the silence of a party may amount to an admission; an offer of compromise, as well as in other ways, coupled-, however, with the important qualification that the fact said to be admitted is one that in the particular case he is bound to admit or deny: Bowen v. De Lattre, 6 Wh. 430; Wallace v. Small, M. & M. 448; Brady v. Colhoun, 1 P. R. 140; Sailor v. Hertzogg, 2 Barr, 182; 4 Conn. 617; Murray v. Coster, Hartford Bridge Co. v. Granger, 4 Conn. 142; Fuller v. Hampton, 5 Conn. R. 416; Marsh v. Gold, 2 Pick. 285; Gerrish v. Sweetser, 4 Pick. 374; McGill v. Ash, 7 Barr, 397; More v. Smith, 14 S. & R. 393. The letter is clearly an offer of compromise, and as such inadmissible; but it is contended that it is evidence of an independent fact, viz., that, inasmuch as it does not refer to the indemnity, it is fairly to be inferred from the writer’s silence on that head no such indemnity existed. But to this the answer (and we deem it satisfactory) is, as the design of the letter wras to effect a compromise, it cannot reasonably be expected the writer would refer to an indemnity, a knowledge of the existence of which would tend to defeat the object he had in view. Besides, before the letter was written the defendant denied the indemnity, a fact accounting for making the offer without consulting him or making any mention of it. We perceive no error in charging the jury that if the plaintiff paid the money over to Thomas & Martin, under the mistaken belief that the goods of which it was the proceeds had been assigned [169] to Mm to secure the draft of Morris, Hollingshead & Co., the plaintiff may recover on the money counts. That money paid under a mistake of fact, may be recovered back under a count for money had and received, is settled in many cases, and is not now an open question: Tybout v. Thompson, 2 P. A. Br. 27; Miles v. Stevens, 3 Barr, 37; Shearer v. Fowler, 7 Mass. 32; Garland v. Salem Bank, 9 Mass. 414, and other cases. Besides, this error would not avail the defendant, if it can be made to appear by calculation, that the verdict was really rendered on the special counts. By a late act, to which we are inclined to give a liberal construction, we have the power to modify, as well as affirm or reverse a judgment, in either a civil or criminal case. It remains now to notice the last error to the charge. A fraudulent contract, as between the parties to the fraud, cannot be enforced. This, as a general proposition, is too well settled to admit of dispute: consequently, if the design was to wrest the property from the grasp of creditors, or to delay, hinder, and defraud creditors, it would be fraudulent as well at common law as by the statute. As between the parties to the contract, viz., the plaintiff and Morris, Hollingshead & Co., the court would not lend its aid, but would leave them in the condition it found them. But this principle, which is unquestionable, does not apply to the facts of this case. For, granting that it was the intention of the parties to the original contract, to cover the goods from the claims of the creditors of Morris, Hollingshead & Co., which is the allegation, yet the evidence is, that E. F. Brady was under the impression, and induced his brother to believe, the goods were consigned to secure a debt owing by the firm to him; but afterwards being in doubt whether such was the design, he was about to pay over the proceeds to the consignors, but was prevented from doing so, and paid them to the defendant at his solicitation and upon giving the indemnity, upon which suit is brought. As then between the plaintiff and defendant the contract was bond fide without a taint of fraud; indeed, if the testimony is believed, it was brought about by the representations of the defendant himself. He cannot now, after having received the money, attach the fraud (if any existed) of the original transaction to the contract of indemnity. To do so, supposing there was an indemnity, would itself be a fraud. But for the indemnity, the money, we are warranted in believing, would have been paid over to the consignors, which would have ended all responsibility on the part of the plaintiff. This view of the case is fully sustained by the authori [170] ties. Thus, in Swan v. Scott, 11 S. & R. 164, Duncan, J., says the test, whether a demand connected with an illegal transaction is capable of being enforced at law, is, whether the plaintiff requires the aid of the illegal transaction to establish his case. If the plaintiff cannot open his case without showing that he has broken the law, a court will not assist him. So it is ruled in Toler v. Armstrong, 4 W. C. C. R. 300, that if the promise be unconnected with the illegal act, and is founded on a new consideration, it is not tainted by the act. Story, in his Treatise on Contracts, § 227, thus states the law: “If an act in violation of either statute or common law be already committed and a subsequent agreement entered into, which, though founded thereupon, constituted no part of the original inducement or consideration, such an agreement is valid.” Judgment affirmed.