Hayes v. Morrison

Sawyer, J. There is sufficient evidence in the case to sustain the verdict, if the set-off upon the facts is not to be allowed. The facts stated that the plaintiff let the defendant have seventy-five dollars, and that there was evidence tending to show that the defendant agreed to see the plaintiff and pay him the money, or in some way adjust it in the course of the next week, are clearly sufficient to warrant a jury in finding that the money was loaned upon a promise to repay it. The verdict, therefore, must stand, — 95 — unless there is competent evidence to support some one or more of the items of the set-off. The first item is for cash paid on the judgment recovered by Pendergast. It was recovered by him against the parties to this suit, and two others jointly; and as to the costs rendered in the judgment, was paid equally by the four judgment debtors. Each of the four was liable to the creditor to pay the whole amount of the judgment costs, as well as debt, while, as between the four debtors, they were bound to pay both in respect to the costs and the debt, in proportion to their respective shares in the debt; that is, in proportion to their several shares in the mill. The costs must be regarded as incident to the debt. Upon the question of contribution, they cannot be distinguished from it. The failure to pay the debt which occasioned the costs is to be imputed to all who were liable, and sued; and the extent of their neglect is to be measured by the respective proportions which they were bound to pay in reference to each other at the time of suit brought. They were bound to contribute each his proper share towards the debt; and the costs which resulted from their neglect to pay the debt must be apportioned among them in proportion to the measure of neglect imputable to them. The same equitable principles which govern in the case of contribution among co-promissors, in reference to the debt for which they are jointly liable, equally apply in the case of costs rendered in judgment against them jointly for the non-payment of their joint debt. This view is sustained by the principles recognized in the case of Fletcher v. Grover, 11 N. H. 368, and in Boardman v. Paige, 11 N. H. 431. The position is sustained by Davis v. Emerson, 17 Me. 64, which is in point. When, therefore, the defendant paid with his own money the judgment for the costs to the extent of one fourth part of the whole amount, he paid it to relieve himself and the other three judgment debtors from a common burthen, — 96 — which, as among themselves, they were hound to sustain in proportion to their respective shares in the debt. "Walker, one of the four, having paid one fourth part of the whole cost, satisfied the judgment to the extent to which he was bound to contribute, in order to relieve himself and his co-debtors from the common burthen. The plaintiff was bound to contribute one half of the whole amount. He paid but one fourth, 'and his other one fourth was paid by the defendant and the other debtor, Morrison, together, each contributing ■ one eighth of the whole towards the share which the plaintiff was bound to pay. The defendant, therefore, paid to that extent, that is, one eighth of the whole, for the benefit of the plaintiff. Nor is the position of the parties in reference to the question of contribution at all affected by the fact that when the money was paid, the parties supposed they were paying according to their just proportions. The payment was compulsory. In making payment to the extent of one fourth instead of one eighth, the defendant, as to himself and the creditor to whom the payment was made, satisfied his own debt to that extent. The whole amount of the judgment was a debt against him, which the creditor had the power to compel him to pay, regardless of the obligation of the others to contribute. If he had paid the whole, either with or without the understanding that he had a remedy over against the others for the whole or any portion of the money paid, it would have been in either case equally the application of his own money to pay his proper debt, as between him and the creditor. If he was otherwise entitled to such remedy, it would not be lost merely because he paid the debt with the understanding that the law did not afford him such remedy. Even his express agreement with the other debtors to pay it as his own, as between him and them, would not change the character or consequences of the payment, unless it was founded upon a legal consideration, thus constituting a new contract be — 97 — tween Mm and them, by which he undertook to relieve them from the debt and assume it as his own. The payment, therefore, though made by the defendant with the understanding that it was to the extent of his share and no more, was in fact, beyond that; and so far as it exceeded that, was in fact a payment made by one judgment debtor for another, in a case where contribution is to be had. No demand is necessary for the recovery of money thus paid in discharge of a specific liability. It was the duty of the plaintiff to have paid it to the defendant immediately. The relation existing between co-promissors in such case is such that the law implies a request by the plaintiff to pay the money on his account, and he was bound to refund it without demand. The bringing of the suit is a sufficient demand. The other items of the set-off stand on different ground. They are for advances or payments made on account of the charges and expenses incurred in prosecuting the defence to the action in which the judgment was recovered. If there is to be contribution between the parties to this suit, on account of payments made by the defendant, as specified in the last two items of the set-off’ it is not because they were jointly liable, or were made co-defendants in that action, but because the parties, or they together, with the other two defendants in that action, agreed among themselves to unite in the defence, and bear the expenses jointly. In the absence of any agreement to that effect, either of the parties, incurring expense in defending the suit, would incur it on his own account. The fact that others had a common interest with him in the defence would not of itself authorize him to incur expense upon their joint account. If the action had been for a tort, in which case no contribution could be had among the judgment debtors, their agreement to conduct the defence upon their joint account would have rendered the necessary and proper expenses of the defence their joint debt, for the — 98 — payment of which contribution might have been had, as in other cases upon contract. But whether the action were for a tort or ex contractu, the only ground upon which contribution could be required for the expenses incurred in the defence is, that the parties among whom contribution is sought, agreed to make it on their joint account. It is not stated in the case whether such agreement existed or not between these parties, and that fact is material. "Without the finding of that fact the court cannot hold, as a con-elusion of law, that the last two items are to be allowed. There is, perhaps, evidence in the case, competent to be submitted to a jury upon the question, but it should have been passed upon by them, or the fact that there was or was not such agreement should have been stated. But upon another ground the claim of the defendant under the last two items may be disposed of, even if it be assumed in his favor that the agreement existed. The fact is found that the mill-owners never had a settlement among themselves, as to the expenses incurred in the defence of the Pendergast suit; and it did not appear upon the trial that any demand was ever made by the defendant upon the plaintiff for his share of the expenses. There is no evidence in the case tending to show such demand. Assuming, then, that there was an agreement either among the four original defendants, or between the two who are parties to this suit, that the expenses in procuring the attendance of witnesses and the services of counsel were to be on their joint account, and that the sums specified in these two items were proper advances or payments made by the defendant under that agreement, still the defendant has no cause of action against the plaintiff on account of them, until a demand upon him for his proportion. The general principle is, that where the cause of action arises upon a precedent debt or duty, no demand is necessary. It is clear that no debt or duty arises in favor of one of the parties to a general agreement to share in future — 99 — expenses, which are indefinite and contingent, until, upon accounting together, it is ascertained who had paid more than his -just share o'f the whole expense, and who less, and how much less; thus determining in whose favor, and against whom, and for how much a cause of action exists; or until the party by whom the excess has been paid presents the account to him who is deficient, and demands its adjustment. It must be understood from the case that the agreement, if any existed, was to share, not in a specific liability of a certain and definite amount, but in the necessary expenses incident to the defence, the amount of which was indefinite, and could not be known at the time of the agreement. Such general agreement places the parties, quoad hoc, upon the footing of partners, and implies an accounting together, and a striking of balances, in respect to their joint transactions, before a liability is incurred by one to the other. The defendant, then, being entitled to recover upon the first item in the set-off, but not upon the others, the verdict must be set aside, and judgment rendered in his favor for the balance due him on account of the first item, after deducting therefrom the seventy-five dollars loaned to him by the plaintiff, and interest thereon.