Messer v. Swan

[485] The opinion of the court was delivered by Richardson, C. J. It is not disputed in this case, that the plaintiff is entitled to judgment against the defendant, but the controversy between the parties is, as to the amount of the sum, for which judgment ought to be rendered. On the former trial the plaintiff recovered $89, being one third of the sum paid to the Windsor bank, and interest. It is now contended, on behalf of the defendant, that the plaintiff is entitled to recover only one sixth part of the amount paid to the bank, and interest, because one half the sum thus paid to the bank was paid' by Gould, who is now entitled to maintain an action against this defendant for his due proportion. We are not prepared to say that the money paid to the Windsor bank may not in law be considered as paid by the plaintiff and Gould, either jointly or severally. But as it was actually paid by the agent of the plaintiff, we have no doubt that it may now be legally considered as paid by the plaintiff. It is not an uncommon thing in the law, to permit a plaintiff to elect to view a transaction in a particular light for the sake of the remedy. Thus if A unlawfully take the goods of B, and sell them for money, B may elect to view A.as a wrong doer, and maintain trespass for the injury, or he may consider A as Ms agent, and, in an action for money had and received, recover whatever A received for the goods. When we examine the real transaction in this case, we find that the money has in fact been paid by Messer. Gould has paid no more than his due share. The mode in which the business was done, and the light in which Gould and Messer viewed it when transacting, are immaterial. No injustice will be done by viewing the transaction as it now in fact is, that Messer has in reality paid his own share and Swan’s, and ought not to he compelled, on this ground, to refund any part of what he has recovered in this case. If Swan can succeed in recovering back on this review one half of what he has paid the plaintiff under the for486 mcr judgment, the plaintiff will have his remedy against. Gould to recover the money he may thus refund to Swan, and Gould may maintain an action against Swan and recover the same money. Rut by viewing the money as paid to the bank by the plaintiff, this circuity of action may be avoided, complete justice may be done to the parties, and no rule of law will be violated. But it is contended, that a recovery in this case of the whole "sum Swan was bound to contribute, will be no bar to an action for contribution by Gould against Swan. If this proposition could be maintained, it would be decisive on this point in favour of the defendant. For if in an action by Gould against Swan, Gould could now be considered as having paid one half of what was paid to the bank, and could recover of Swan one third of what he so paid, it is clear that the latter cannot be liable for that third in this action. But on what ground could Gould sustain such an action ? if he showed that he paid to Mes-ser one half the sum paid to the bank, Swan would show that Messer had repaid to Gould all above the one third which the latter was bound to contribute, so that Messer, in fact, had paid two thirds of the sum. And Swan would further show that he had paid to Messer .all he was bound to contribute. On what ground, then, could Gould recover r We see no grounds on which such an action could be supported. Gould, by receiving back from Messer all the money he furnished above what he was bound to contribute, may be considered as having elected to view the payment made to the bank as made by Messer, and would be bound by that election in a suit against Swan. It is further contended, on behalf of the defendant, that what the plaintiff has received of Carr since the former recovery in this ease ought to he considered as received for the benefit of all the sureties, and go to lessen the damages for which judgment ought now to be rendered. If the law be so, this case will exhibit a new instance of [487] the inconveniences attending a review. For if the damages are lessened in any degree on this trial, the plaintiff will not only lose all his costs of review, but be compelled to pay the costs of the defendant. And if the damages are lessened on this ground, the plaintiff will be subjected to all this loss by voluntary exertions on his part, which must, in the eye of the law, be viewed as made for the common benefit of all the sureties. The application of the principle in this case would, therefore, be in tbe highest degree harsh, unreasonable and severe. But it is argued, that as the statute regulating reviews declares that the cause shall be tried on review in the same manner as if no judgment had been rendered therein, and as the sum received of Carr by the plaintiff in this case might, had it been reviewed before the first trial, have been given in evidence to reduce the damages, it is now by this provision of the statute made admissible for that purpose. It is not to be disputed that the cause is to be tried upon review in the same manner as if no judgment had been rendered therein. But what is the meaning of this ? Surely not, that every thing which takes place after the first trial shall be used in evidence on the second trial, in the same manner as if it had taken place before the first trial. For instance, where a judgment is rendered in favour of a plaintiff in assumpsit after the first trial, and the defendant pays the amount recovered, it will hardly be contended that such payment can be given in evidence on review, in the same manner as if it had been made before the first trial. It seems to us that the meaning of this clause is only this ; the first judgment shall have no weight in the trial of the cause the second time, but shall be wholly disregarded, as furnishing no evidence of the real facts of the case for or against either party. Such being our opinion as to the meaning of the clause, we, of course, hold, that it furnishes no argument which can avail the defendant on this point. [488] We have no doubt, that in general, whatever payment one surety may receive from the principal shall enure to the benefit of all. But we are not prepared to hold, that this rule applies to money received by one surety in satisfaction of his claim against the principal, after the sum paid for the principal is adjusted among the sureties and each has paid his due proportion. It is a well settled general rule, that the demands of sureties against the principal for money paid by them .severally, are in their nature several, and that they cannot join in a suit against the principal. 3 B. & P. 235, Brand v. Boulcott; 3 N. H. Rep. 366, Pearson v. Parker. On what ground, then, can a surety claim any portion of what a co-surety has received in satisfaction of his separate claim ? We think there is no ground on which such a claim can be sustained. We have been referred to no adjudged case, which gives any countenance to such a claim, nor has any such case occurred to us in our researches. And we are of opinion, that there is no sound principle of law on which such a claim can be sustained. We are, therefore, of opinion, that the judgment to be rendered on this review is, that the former judgment be in all things confirmed.