Jack v. Morrison

The opinion of the court was delivered by Woodward, C. J. — The action was by a first against a second endorser of a negotiable note drawn by Robert Wray; but as no action could result to Morrison, the plaintiff, out of that relation, he declared against Jack upon a parol contract of guaranty, and alleged that Jack had endorsed the note in pursuance of that contract. The difficulty in the way of the plaintiff’s enforcing such a contract was our Act of Assembly of 26th April 1855, requiring an “ agreement or memorandum in writing, or a note thereof” to bind Jack to pay Wray’s debt. And it was an insuperable obstacle; for the statute is express, and must have effect. It was copied from the English Statute of Frauds and Perjuries, and has long since vindicated itself as a salutary rule of law. To take away this temptation to perjury, he who is sued for the debt of another has a right to demand written evidence of his promise. Nor was Jack’s signature the requisite note in writing, for it imported only an endorsement of commercial paper, and made him liable as an endorser only to subsequent, and not to prior holders of the paper. True, in Paul v. Stackhouse, 2 Wright 302, we held the signature of the defendant sufficient to take the contract out of the statute, but there the signature, though a year after the date of the note was added on the face of it, making the defendant a drawer and an adopter of the language of the note. The note, and all its written words, became his, and the statute was complied with. But here there was no adoption of the language of the note as expressive of Jack’s contract, and all that his signature implied was that he had assumed the liabilities of an endorser, which liabilities Morrison cannot enforce, because he is a prior endorser, and in that character liable to Jack. On the plaintiffs’ narr., therefore, as originally filed, he was not entitled to recover. [117] But on the trial he added to his narr. the common money counts With the leave of the court, and he proved that .Wray had^ placed in Jack’s hands several promissory notes, to indemnify him against this very debt, and that three of the notes, amounting in the aggregate to $400, had been paid to Jack, or in the bank to his credit. Now, why should not Morrison recover that sum, on the money counts ? It is said that it was error to admit the counts, because they were introductive of a new cause of action. We think not. No new cause of action was introduced in the sense that forbids amendments of pleadings on the trial. Morrison had sued Jack for the money that Wray owed him, and the common counts were only another way. of declaring that Jack was liable to pay that money. It is next denied that an action will lie by Morrison for money so coming into Jack’s hands, but all the authorities are against •the plaintiff in error on this point. Nothing is better settled than that money paid to another for the use of a third party may be recovered by him for whose benefit it was paid. If there be no express promise to pay it over, the law will imply a promise, and it is of no consequence that the consideration moves between the original parties, and not from him who sues. The rule, indeed, is sometimes stated as broadly as that money may be recovered in assumpsit which the defendant ex aequo et bono ought to pay. We think the court ought to have directed a verdict to be rendered for the plaintiff, upon the common money counts, for the $400, proved to have gone into Jack’s hands, and there is no difficulty in our so modifying the judgment as to enter it upon those counts. But we cannot enter judgment on the money counts for the sum ($698.23) found by the verdict, for no such sum was proved to have been received by Jack. Nor can we enter judgment for the $400, because we may not have all the evidence; it is for the jury to fix the amount recoverable on the common counts from the whole evidence. The best we can do in such circumstances is to reverse the judgment, and let the record go back to have a judgment entered by the court below on the common counts for the sum in defendant’s hands, which the jury may fix from all the evidence. Judgment reversed, and a venire facias de novo awarded.