Hendrickson v. Hutchinson

The opinion of the court was delivered by The Chief Justice. The defence set up in this action was that, pendente lite, Norris, one of the co-promisors of the note upon which the action was founded, paid to Hutchinson, the plaintiff, a certain sum of money, being less than the amount due upon the note; that Hutchin [182] son, in consideration of the payment, gave to Norris an order to his attorney to give up the note to him, and that the payment was accepted and received in full satisfaction of the note; that it was stipulated that the suit might proceed in the name of the plaintiff for the benefit of Norris, who claimed to be and was permitted to prove that he was only surety on the note, although apparently a joint promisor; The action was assumpsit, judgment by default against both parties was entered, and the defendant, who was i-ot served with process, was permitted to plead to the action, and put in the plea of non-assumpsit. At the trial, the jury were directed to render a verdict for the plaintiff for the whole amount, and there was a verdict accordingly. It does not appear by the case upon what the decision turned, nor what the court decided; upon this point we are left to conjecture. It should have contained the charge of the court to the jury, as the case was decided, it would seem, upon questions of law. The reasons assigned by the court might have satisfied our minds of the propriety of his decision better than the arguments of counsel. From the course of the argument in this court it is fair to presume that the court below held the defence set up in bar of the action inadmissible upon one of three grounds. 1. That it arose after action brought, and could not be admitted under the pleadings and issue joined. Or, 2. That the defence attempted was no bar to the action, because a discharge of one joint and several promisor is no bar to an action against the other, unless the note be paid in full. 3. That the defendant could not avail himself of the payment made by his co-promisor, either because it was made pendente lite, or because, as surety, he was to be [183] permitted to continue the action commenced against them jointly, for his own benefit. Matter of defence arising after action brought cannot be set up as a bar to the action under the plea of the general issue in assumpsit. The actio non relates to the time of commencing the suit, not the filing of the plea. Nothing can bar the action generally that does not show it was not rightfully brought. This was first decided in Le Bret v. Papillon, 4 East 502, in which the Court of King’s Bench, Lord Ellen-borough delivering the opinion, held that a plea that the plaintiff was an alien enemy at the time of plea pleaded was bad, holding it to be a settled rule of pleading that no matter of defence arising after action can be properly pleaded in bar of the action generally, but must be pleaded in bar of its further maintenance, as in case of a plea puis darrein continuance. The same doctrine was held in Lee v. Levy, 4 Barn. & Cres. 390. Abbott, C. J., said, considering that the matter of defence insisted upon in this case arose after original sued oui, we are of opinion, upon the authority of the two cases of Evans v. Prosser, 3 T. Rep. 188, and Le Bret v. Papillon, that it could not be pleaded in bar of the action generally, and consequently that it was not admissible in evidence under the general issue. Worswick, administrator, v. Beswick, 10 B. & C. 677. These cases are recognized as law in Covell v. Weston, 20 Johns. 414, in Boyd v. Weeks, 5 Hill 393, and Boyd v. Weeks, 2 Denio 322. See also Rundle v. Little, 6 Q. B. 174. In the last case Lord Denman said the rights of the parties at the trial are the same as they were at the commencement of the suit, or if they are changed a plea puis darrein continuance ought to place the new facts upon the record. These cases rest upon sound principle, are founded upon well-settled rules of pleading, and should be adopted as the law of this court. [184] The bar set up by the defendant in this ease was inadmissible for want of a proper plea. The defence was not within the issue; that was, that the defendant was not liable at the commencement of the suit. But although the. payment of the money after action brought was not a bar to the action generally, it does not therefore follow that it could not be shown in reduction of damages. An incomplete defence, one going only to a part of the action, although it cannot be pleaded or set up as a bar, may be shown under the general issue. Boyd v. Weeks, 5 Hill 394 ; Wilmarth v. Babcock, 2 Hill 194; Mervin v. Kumbel, 23 Wend. 293; Herkimer M. and H. Co. v. Small, 21 Wend. 277 ; Shirly v. Jacob, 2 Bing. N. C. 88; Lediard v. Boucher, 7 Car. & P. 1; McMillan v. Wallace, 3 Stewart 185; Hudson v. Johnson, 1 Wash. 10; Bank v. Brackett, 4 New Hamp. 557. These cases establish the proposition that partial payment of the debt pendente lite may be shown in reduction of damages. If Norris,, the co-promisor, paid the' $500 in part satisfaction of the whole amount due upon the note, it was, by operation of law, a payment for the' benefit of both. The authorities cited by plaintiff’s counsel, as to the effect of a discharge of one joint-' maker, or joint and several makers, do not affect this question ; this is a question of the quantum of damages, not of the maintenance of the action. The evidence offered upon the trial, that Norris was surety, was not competent. Its object was to show that the payment of $500 should not be allowed, because the suit was prosecuted for the benefit of Norris, who was the real plaintiff. The equities between the join«t makers were not within the issue — both appeared upon the face of the note as principals. In a court of law, the issue must be tried as it is framed ; it was between Hutchinson and Hendrickson. Norris [185] could not let judgment go by default, aud maintain an action for contribution wider cover of Hutchinson. The decision of these points disposes of the case without reference to the question whether the facts shown by the defence were competent to go to the jury as proof of a discharge of Norris, and therefore of Hendrickson. Verdict set aside, and new trial granted.