Nutter v. Sydenstricker

Johnson, Judge, delivered the opinion of the Court: It is alleged as error, that the case was remanded to rules, with leave to the plaintiff to file an amended declaration; and the record does not disclose that any-amended declaration was ever filed, or how the case came again upon the trial docket. It was perfectly competent for the court to ignore the order made remanding the case to rules, where the defendant was in court, at the time the trial was had, and not objecting thereto. The demurrer ought to have been overruled; the common money counts in the declaration were certainly good, as is also the second of the special counts: the demurrer being to the whole declaration, and some one or more of the counts being good, the demurrer should have been overruled; and the court treated the case as if it had been so overruled: Hollingsworth v. Milton, 8 Leigh 50; Henderson v. Stringer, 6 Gratt. 130. Several exceptions were taken to the judgment of the court in overruling objections to the admissibility of testimony offered by the plaintiff. All matters of law and fact were submitted to the court by the plaintiff and defendant in error. The court, in lieu of a jury, tried the whole case. The principles governing trials of this kind have been settled in Virginia and in this State: Pryor v. Kuhn, 12 Gratt. 615; Wickham v. Lewis Martin & Co., 13 Gratt. 427; Mitchell v. Barratta, 17 Gratt. 445; Harrison v. Farmers’ Bank, 6 W. Va. 1; The evidence being certified, it is for the appellate court to say, whether there is sufficient legal testimony in the case to sustain the judgment of the court below. As this Court would not remand the cause for a new trial, but would render such judgment as the circuit court should have rendered, upon the law and facts before it; unless it appeared from the record, that a new trial ought to have been awarded by the court below, it would not avail the — 544 — defendant in. error, even if improper testimony bad been admitted by the court below. When a case is heard by a jury, before the court can pass upon the admissibility of the evidence, it must know what the evidence is; and when the court tries the ease in lieu of a jury, it is certainly competent to disregard illegal testimony. It was not therefore error in the court, to overrule the objections to the evidence, offered by the plaintiff. The question before the court is: Was the judgment of the court warranted by the evidence ? The evidence is conflicting,' and we must regard the defendant in error as a demurrant to the plaintiff’s evidence; and the judgment of the inferior court will not be reversed, unless it is plainly erroneous. It is claimed here by the plaintiff, that he has been compelled to pay money, which the defendants ought to have paid, and that the law raises a promise by the defendants to repay him. It is not shown in the evidence that defendants expressly requested the plaintiff to pay the money, nor do we think this was necessary; when no express order or request has been given, it will generally be sufficient for the plaintiff to' show, that he has paid money for the defendant, for a reasonable cause and not officiously. And in general, where the plaintiff shows that he, either by compulsion of law, or to relieve himself of liability, or to save himself from damage, has paid money, which the defendant ought to have paid, the count for money paid will be supported: 2 Greenl. Ev. §114. And this may be so, whether there be any privity of contract between the plaintiff and defendant or not. Indebitatus assumpsit for money had and received, can be maintained in various instances, where there is no actual privity of contract between the plaintiff and defendant, and where the consideration does not move from the plaintiff. In some actions of this kind a recovery has been had, where the promise was to a third person for the benefit of the plaintiff; such action being an equitable one, that can be supported by showing that the defend — 545 — ant has in his hands money, which in equity and good conscience belongs to the plaintiff, without showing a direct consideration in money from him, or a privity of contract between him and the defendant. 2 Greenl. Ev. 105, note. Where the money has been paid for theV-use of the defendant, the request necessary may be either express or implied. If it has not been made in express terms, it will be implied under the following circumstances: 1st. Where the consideration consists in the plaintiff having been compelled to do that to which the defendant was legally compellable. 2d. Where the defendant has adopted and enjoyed the benefit of the consideration. 3d. Where the plaintiff voluntarily does that whereunto the defendant was legally compellable, and the defendant afterwards, in consideration thereof, expressly promises. But there is this distinction between this and the two former cases; in each of the two former cases, the law will imply the promise as well as the request; where in this and the following case the promise is not implied, and the request is only implied where there has been an express promise. 4th. In certain cases where the plaintiff voluntarily does that, to which the defendant is morally though not legally compellable, and the defendant afterwards, in consideration thereof, expressly promises. 2 Greenl. Ev. §114, note, and cases cited. In Hall v. Marston, 17 Mass. 574 it was held, that where A. was the debtor of B. in the sum of $1300, and also of C., in the sum of $400.00, and being abroad remitted to B. a bill of exchange for $1,000.00, with directions when the amount should be received, to pay C. $200.00, and B. received the payment of the bill at maturity, but neglected to pay C. as directed, and gave him no return of the remittance, B. was liable to C. for the $200.00 in an action for money had and received. In the case of Arnold et al. v. Lyman, 17 Mas. 400, the action was assump-sit, founded upon the following agreement, subscribed by the defendant: “ Whereas, Hezekiah Hutchins hath this day assigned, — 546 — transferred, made over and sold to me, certain notes, accounts, demands, goods, wares and merchandise as per invoice and schedule annexed, with full authority to collect, receive and make sale of them to my own use; now therefore, in consideration of the premises, I do hereby promise and engage to assume and pay the following demands against the said Iiutchins, as follows, to-wit:-, also one note to Samuel Arnold, for two hundred and thirty-seven dollars ($237.00), and to save said Hezekiah harmless from all costs and expenses, on account thereof. In witness whereof/’ &c. In that case there was a special count, and a count for money had and received. And the counsel for the defendant in the court below, in that case, as the counsel for the defendant, Sydenstricker, does in this case, contended that the written agreement is the foundation of the action; to that the plaintiffs were not parties; that the plaintiffs were strangers to the consideration, and could not therefore maintain the action. Parker, C. J., in delivering the opinion of the court, said: “There was a sufficient consideration for the promise. The goods of Hutchins, which in his hands ■were liable for his debts, were transferred to the defendant, and put into his possession. This transfer might have been avoided by the creditors of Hutchins; but there is no evidence that the possession of the defendant has ever been disturbed. The promise founded on this consideration was not made to Hutchins; though without doubt he could have maintained an action on the contract, had he been sued upon any of the notes, which the defendant undertook to-pay. But we think also, that the promise may be legally considered as made to the several creditors, whose debts the defendant undertook to pay, if they choose to avail themselves of his engagement. The promise was to pay certain particular debts; and there seems to be no reason why it should not be treated as a promise to the creditors. It being in writing, and there being a sufficient consideration, it is no objection, that it is the promise, to — 547 — pay the debt of another. The promise being not to Hutchins expressly, but general, in its form; the assent of the creditors made them parties to the promise; and this assent is sufficiently proved as respects the plaintiffs, by their bringing an action upon the contract. Generally, he for whose interest a promise is made, may maintain an action upon it, although the promise be made to another, and not to him.” The defendant was held liable in the action. The doctrine, as laid down in the two cases cited from Massachusetts, and also in Greenleaf on the same subject, was controverted in Virginia in Ross v. Milne et ux., 12 Leigh 204, and in Clarkson v. Doddridge et al., 14 Gratt. 42; but whatever may have been the conflict as to the law, it is now settled by statute in this State, section 2 of chapter 71 of the Code, taken from section 1 chapter 116 of the Code of I860, which is as follows : “ An immediate estate or interest in, or the benefit of a condition, respecting any estate, may be taken by a person under an instrument, although he be not a party thereto; and if a covenant or promise be made for the sole benefit of a person with whom it is not made, or with whom it is made jointly with others, such person may maintain, in his own name, any action thereon, which he might maintain in case it had been made with him only, and the consideration had moved from him to the party making such covenant or promise.” Applying these principles to the case here, what is the result? There is legal testimony in the case to show clearly that the plaintiffj was legally bound to pay the execution, described in the obligation in the declaration. That the execution was against the original defendant, John McMartin and the plaintiff here, Jeremiah Nutter, his surety; that McMartin after the levy was trying to get security in an undertaking for the forthcoming of the property so levied on; that the said obligation was then executed, and the consideration for said obligation was, that McMartin gave the Sydenstrickers credit on their indebtedness to him equal to the whole amount of — 548 — execution and costs; and they, by exacting the said obligation for a full consideration, bound themselves to pay off in full said execution and costs; that McMartin, by showing said obligation to Nutter, induced him to sign the undertaking after the Sydenstrickers had signed it. Then they were all bound to the creditor, Matthew McClung; that the undertaking was forfeited, and execution was awarded thereon, against all the parties thereto, except Philander Sydenstricker; and that Nutter was compelled to pay it. This must all be taken to be true, in a case like this where thé defendant in error is like a demurrant to the plaintiffs’ evidence. It matters not that execution was not awarded against Philander Syden-stricker. He had before that, for a valuable considertion, assumed to pay the execution and all costs that might be put on it. It will not do to say there was no obligee in said bond; the case we have cited of Arnold v. Lyman, as well as our own statute, is a complete answer to that objection. The execution was the debt of the Sydenstrickers, after they had executed the agreement. The promise thereon was made for the benefit of Jeremiah Nutter; and he may maintain an action upon it, although the promise was made to John McMartin and not to him. Nutter was not a volunteer, he did not pay the debt officiously; he was by the strong hand of the law compelled to pay it; and under the circumstances of this case, where the Sydenstrickers had received the full amount of the debt from McMartin, and bound themselves to pay the execution, it would be grossly unjust, if they could not be compelled to pay the money to the very man, who was forced to pay it for their use. I am of opinion for the foregoing reasons, that there is no error in the judgment of the circuit court of Greenbrier county, rendered on the 19th day of June 1875; and that the same should be affirmed with costs and damages according to law. Judges GreeN and Moore concurred. Judgment Affirmed.