Mehaffy v. Share ex rel. Hains

The opinion of the court was delivered by HustoN, J. --The defendant appeared, prayed oyer of the writ, — 376 — and of Henry Hains’ power to sue, and special imparlance; and a rule was granted on plaintiff’s attorney to filG his warrant of attorney, and he filed it. This may seem strange to those in other states, but in fact occurs so seldom, that many lawyers in full practice, for a long time, never had, and never have been called on to file a warrant of attorney. The client spealis, or writes to the lawyer, and gives him a fee, and he attends to the matter. After oyer, defendant pleaded in abatement. A declaration was filed, and a rule to plead and second rule; the court ordered the plaintiff to reply to the plea in abatement; and he did so, and issue was joined on the right of Henry Hains to bring this suit. The plaintiff’s replication to the plea was rather argumentative; but there was no demurrer; the defendant chose to go to trial before a jury. The jury gave a verdict for the plaintiff, and assessed the damages. There are many reasons filed why a new trial should be granted, and not a few of them, such as ought not to have been presented to any court. It is usual to bring a suit as this is brought, in the name of one person, for the use of another. Since the last term Henry Share had died, and formerly, by the decisions of this court, the suit could not have proceeded until his administrators were substituted; but an actof assembly, of the 23d of April, 1829, had in plain terms directed that the suit should proceed notwithstanding the death of the nominal plaintiff. It is a wise and beneficial act. Henry Share did not institute the suit, could not have discontinued it, and was not liable for costs. lie was a mere formal part of the machinery of a suit. The judge proceeded with the tx-ial, although his death was proved; and this is the first ground assigned for a new trial; and affords one of the most striking instances of the want of reflection with which such motions are made, and reasons for new trials are sometimes filed. Wc are called on to say the above act is in force. It has been settled that in certain cases where issue is joined on "a plea in abatement, the jury, if they find for the plaintiff, must assess the damages. The court so instructed the jury in this case, and permitted evidence of the amount to go to the jury; this is the next reason assigned for a new trial. The cases cited prove the law to be as stated by the judge, and no authority or dictum to the contrary has been produced; and it is admitted, that if Hains had a right to sue, there was nothing to do but calculate the amount. Why this decision of the judge was brought before us I know not. I shall consider the 3d and 4th reasons together, on the admission, in evidence of the assignment or power of attorney, when proved by the subscribing witness, and the admission of the evidence of Wit~ Ham Childs, who drew it, and was a subscribing witness to it. — 377 — There will be no end of discussions 'about the admission of pa-rol evidence, where there is, álso a writing between the parties; but it will, and must be admitted, as long as the attainment of justice is the object of courts. Certain general rules have been attempted to regulate this admission. It is said in many cases it is only admissible where there is mistake, fraud, or trust. Now if the whole contract is fairly and fully reduced to writing, and that writing is not attempted to be used in a different way, or for a different purpose from the meaning and contractof the parties, nobody ever would, or will wish to introduce parol evidence. This rule, then, proves nothing. Another expression has obtained some currency, viz: a contract cannot be partly in writing, and partly in parol. This differs from the former; it is worse than useless; it is incorrect, wherever there has been fraud, or mistake; for when the fraud is developed or the mistake corrected, if not totally set aside, it is carried into effect according to the written contract, corrected by parol evidence, and does always consist of both written and parol, where any part of the bargain is put in writing. It frequently happens that the parties, and the scrivener, understand perfectly the matters which are the subject of the contract, and supposing that there will be no dispute, or that every body will know all that they know, the very subject-matter of the contract is described so vaguely, or indistinctly, as that a stranger cannot comprehend with certainty what was intended to be effected by tho agreement. A familiar instance of this is an agreement to sell a house in Lancaster, and tho seller has more than one house there. Equal, or greater uncertainty may arise on an agreement to transfer a claim. In this case, as the parties and the scrivener knew that Mehaffy had a bond of indemnity from Lytle, they seem all to have considered that Share, or his assignee, might pass over Me-haffy, and at once recover from 'Lytle. They do not seem to have conceived that-Lytle could only be reached through Mehaffy, or rather thought that as Mehaffy was ultimately safe, they need not name him. The scrivener, however, proved distinctly that the whole matter was explained; that Share had paid more than his proportion, and Pedan much less; that thus Share was entitled to contribution from his co-obligors; to be sure, it was added that a particular co-obliger was indemnified; and the mistake consisted in supposing that Share had immediate redress on this indemnity. It was this claim for paying more than his proportion; for paying what Mehaffy ought to have paid, which was alleged to be assigned, and which the jury have found was assigned; and the explanation by the scrivener was necessary to the attainment of justice, becau.se it was necessary to understand the subject-matter to which the power irrevocable applied. — 378 — It is next objected that the power of attorney, after being proved, was permitted to go to the jury; it did not go until after Childs was examined, and then went because the evidence, being partly written and partly parol, the jury alone could decide on its effect. 5th and 7th reasons. — The bond of indemnity from Pedan, and Lytle to Mehaffy was also objecled to, and permití eel to go to the jury. The witness had stated that shortly before Mrs. Evans had sued on her bond, the defendants met and settled, to ascertain, as between themselves, how much of the remaining debt to Mrs. Evans each ought to pay. -At this settlement it appeared that Pedan was most in arrear with his payments, and that the witness then drew the bond from Pedan with Lytle as his security, to Mehaffy and Duffy to indemnify them, in case they should he compelled to pay the whole or part of what Pedan ought to pay. The bond was given in evidence to show the amount which on settlement all parties agreed was due by Pedan, in which point of view it was clearly evidence. This very point was decided by this court, in Charles v. Scott, 1 Serg. & Baiole, 294, and is the ordinary practice whore an action of assumpsit can, or must he brought, and the amount appears by a writing under seal, or a judgment; it is always dono where a surety, or co-obligor pays off the bond, and sues the principal or the co-obligor, to recover from him. The bond or judgment is shown to prove the amount paid. As soon as it is decided that the jury in this cause must find the amount due the plaintiff from this defendant., (in case they find for the plaintiff,) it follows that evidence to prove that Share was in - debted to Haim, and how much, is admissible and necessary. As t.o the evidence offered by the defendants: That TIains was mistaken in first sueing Lytle, that it-was decided such suit did not lie, and that he was non-suited; this was no reason why he ought not to recover in this suit against Mehaffy. The next two offers were the same; the one was to show all the judgments against Henry Share and the other to show a particular one. This claim against Mehaffy was not bound by any judgment; it was a chose in action, and could not have been levied on. But it was said, that as Share’s land, or the proceeds of it, had been taken to pay money which Pedan ought to have paid, or which the other joint obligors ought to have contributed to pay, therefore the judgment creditors of Share ought to have been substituted in his place, and had the money recovered from Mehaffy, or Pedan. It has been decided, and may bo considered settled, that a surety who has paid money for his principal, may have the judgment assigned, in order to levy on lands of the principal, to indemnify himself; here there was no judgment against Mehaffy. Has ft — 379 — ever been decided, that if one man pays money for another, any court can compel that other to assign a chose in action to indemnify him who paid? But no surety paid this money. There was, then, no surety who could ask an assignment of this judgment; Pedan had no property; an assignment of the judgment against him was worthless. The writ was not served on Mehaffy; there was no judgment against him by Mrs. Evans, which she could assign to any one; Share had nothing but a right to contribution, which he alone could sue, and the proceeds of which suit he could give like any other chose in action, to any one of his creditors. Besides, Share, Mehaffy, Duffy and Pedan, were tenants in common of the lands purchased, had given their bond for the purchase money; each was a principal; neither, simply a surety. I don’t know of any case in which one so situated, who has paid more than his share, has been substituted, and has had the judgment assigned to him, to enable him to use it to collect from the others. If it were so assigned he mightlevy all from one; that one must have it assigned, and may levy all from another, and it may go on in a circle. A surety may levy all from the principal, or from, one of the principals. They talso offered the record of a former suit by Share for Hains v. Mehaffy, which they say was for the same cause of action. I shall not stop to inquire whether it is, or not; it was not plead in abatement or bar; it is still open, and if there be a recove-, ry in this, there can be none in that suit. Next eome objections tq the eharge of the court. I think the law was correctly stated by the court;-1 shall only add two authorities: in Richardson v. Stewart, 2 Serg. & Rawle, 84, the matter was decided: which, as the statement of the case is not given, I shall explain. Stewart had purchased land of R. Neave, and paid money, and had a clause of warranty in his deed. In the course of a long contest about the land, he became so involved as to be com-., pelled to take the benefit of the insolvent law. In his assignment he transferred to his assignees, “a claim on R. Neave for- the recovery of- money paid him for land. ” The assignee, however, proceeded 'for the land; it was made a point that Steivart had not transferred any right to the land; but the court held otherwise, and the land was ultimately recovered. In Donley v. Hays, the assignment of a bond was held to amount to an assignment of such interest in a mortgage to secure that and other bonds,ras corresponded to. the amount of the bond, and the assignment of the bond was a transfer of the right to the sum secured, and passed all the remedies and all the securities which the assignor had for that debt; and this is true where there is no express agreement to the contrary. 17 Serg. & Rawle, 400. As to the damages; there is no groundfora newtrial onthis account ■ — 380 — ■ — to remove all doubt as to whether Pedan had paid any money after the settlement between the parties, the plaintiff called Mrs. Evans to give testimony on this matter; the defendant objected to her, and plaintiff did not insist, and she was not examined. Now if counsel will object to every-thing, without reflecting on its effect, it would be strange if this court should grant them a new trial, that they might examine a witness who was in court, and offered to prove the very matter; for let it be remembered, they ask a new trial that they may examine Mrs. Evans on the very subject, and respecting the precise facts which she was offered to prove, and which they resisted. We perhaps ought to take it; that the object is the delay of another trial, and that in fact, that lady would give no testimony which would be in their favor. Rogers, J. — Plaving been of counsel in the cause, took no part, Judgment of the Circuit Court affirmed.