Allen v. Breusing

Mr. Justice Walker delivered the opinion of the Court: The only question involved in this record is, whether the court below erred in sustaining the demurrer to defendant’s special plea. It avers that plaintiff below, as a sutler in the army, had issued to the soldiers of the regiment his checks for sums of money therein named, which he was bound to redeem; and being so indebted to the soldiers, he agreed with defendant that if he would guaranty the payment of the checks, he would extend the time of payment on the note sued upon. That defendant did guaranty the payment of the checks, in consequence of which he had to pay three hundred and fifty dollars of plaintiff’s said indebtedness to the soldiers, which sum plaintiff has never repaid to defendant. By the first special ground of demurrer, it is objected that the plea purports to answer the whole declaration, when, in fact, it only answers the first count. The plea commences: “And now comes the defendant and defends the wrong and injury, when, &c., and says that after making and delivering the said due bill in said plaintiff’s first count in said declaration mentioned, to wit, on,” &c. The plea, if it is good for any purpose, is a plea of payment. It purports to be a defense simply to that count. It refers to the due bill described in that count, and avers that after it was made appellee agreed to extend the time for its payment, if appellant would guaranty the payment of checks issued by appellee to the soldiers of the regiment. That he did guaranty their payment, and in consequence of his guaranty, he was compelled to take up and satisfy these checks to the amount of three hundred and fifty dollars. The gist of the plea is this payment, and it applies to the first count of the declaration. The other special cause of demurrer is, that it is neither a plea of set-off, or of accord and satisfaction, and fails to show what length of time was given to appellant to make payment. This may all be true, and yet if it is, substantially, a good plea of payment, it would be good. The plea is inartificially drawn. It does not allege that the guaranty was accepted in accord and satisfaction. It is, therefore, not such a plea. It fails to pray that the sum averred to have been paid under the guaranty may be set off against the cause of action described in the declaration. It cannot be held a plea of set-off. Mor is it a good plea of a covenant never to sue, operating by way of release, to discharge the debt; nor as a plea not to sue for a definite limited time, as no such time was agreed upon by the parties. If it is a defense; it is, as some other plea. As informal as it certainly is, can it be held substantially a sufficient plea of payment? There can be no doubt that if this money had been paid to the soldiers, at the request of appellee, an action for money paid could have been maintained. And where a surety or guarantor is compelled to pay money- in consequence of such an undertaking, the law implies a promise on the part of the principal for its repayment. Then, if the averments of this plea are tme, and the demurrer admits their truth, appellant could maintain an action for money paid for the use of appellee. "Whilst this was not a payment directly to appellee, it was a payment to bis creditors, for which appellant was liable, and had, by the neglect of appellee, been compelled to pay. It was paid at appellee’s implied request, and could have been given in evidence under a plea of payment. It then follows, although the averments of the plea are not formal, that it is, substantially, a plea of payment, and the demurrer, for that reason, was improperly sustained, and the judgment must be reversed, and the cause remanded with leave to reply. Judgment reversed.