Horback v. Reeside

The opinion of the court was delivered by Sergeant, J. The former suit of Knox & Boggs v. Reeside, (2 Whart. 233,) failed because the bill being drawn on the government, [52] was not a negotiable instrument. This suit is free from that objection, being indebitatus assumpsit for money paid to the defendant’s use by the plaintiff. The facts appear to be, that Reeside, being the contractor for carrying the mail from Philadelphia, to Wheeling, became indebted to the plaintiff and others as sub-contractors for carrying the mail on the western part of the route, and in order to pay them gave them the bill drawn by himself in his own favour, and .endorsed by him, saying it was good, that he had drafts on the department, and that he considered them as good as money; that he received them as his pay, and gave them as such, and that they could get it discounted at some bank. In order to obtain this discount, the plaintiff and others endorsed and received the money, (deducting the discount,) which was distributed among the sub-contractors present, (of whom the defendant was one) and the plaintiff held himself accountable to the: others. Afterwards, the draft not being paid, the plaintiff was obliged to refund the money to Knox ,and Boggs who had taken it up. The objection to the recovery is, that the plaintiff was a partner with the defendant, that the draft was received for the account of all concerned, and that account render only lay, and not assumpsit. Though the sub-contractors were partners amongst themselves as to the sub-contract, they were not so with the defendant as to the department, or as to the mbney due on the defendant’s contract with them to carry the western mail. The defendant alone made the contract with the Post Office Department, and became the debtor to these defendants for carrying that portion. If he gave in payment of his debt a security which turned out to be unavailable, he is still liable to ''them; ánd if the money received on such security turned out to be no payment, and the parties receiving it have been under the necessity of refunding it; that is so much money paid to the defendant’s use: such seems to have been the transaction. The defendant passed to these parties in payment a bill which turned out to be irrecoverable by them, and he is now liable for the debt, and if the plaintiff has paid it to his creditors, at his request, the defendant is liable for reimbursement. The defendant, according to the evidence, gave the draft to M'Nair on behalf of the sub-contractors to pay them, and the defendant himself received a part of it as such; the. plaintiff having done so cannot recover it back from the subcontractors, and" is moreover liable, so far as appears to us, to those who remain unpaid, as he received the money expressly for their use. There is, therefore, no objection to the testimony of MNair, one of the sub-contractors, on the ground of interest. He could not be sued by Plorback to recover back this money, even though Horback should fail in this suit. Plorback has chosen to receive it and pay it over without reservation or stipulation, and must take the risk of getting it from Reeside. [53] On the whole, Reeside is the debtor, and justly bound to pay, and we think this form of suit maintainable under the circumstances of the case. Rule for new trial discharged.