3 Barb. 634 | N.Y. Sup. Ct. | 1848
By the Court,
The counsel for the defendants, on the argument of this cause, made the following points, viz: 1. That the plaintiff endorsed the note in question for the purpose of giving the maker credit- with the defendants’ intestate; 2. That there was no evidence that the plaintiff made any payments upon the note; 3. That the judgment against the sheriff was a satisfaction of the judgment against the maker of the note, which discharged the plaintiff; and if the plaintiff made any payments thereafter he could not charge the defendants with the same; 4. That the report was against evidence. The evidence, it appears to me, does not sustain the first point of the defendants’ counsel. I can find nothing in the case to authorize the inference that the plaintiff endorsed the note to give the maker credit with the defendant’s intestate. The only evidence on the subject is that of Johnson the maker. He says that the note in question, and another note of the same amount, were given to take up a note of $650 which Martin the intestate held against him; - that the plaintiff put his name on the
The evidence shows that the plaintiff advanced all the money which was paid to the attorney of the Albany Exchange Bank. The plaintiff paid $200 on the execution against himself, to the sheriff, during the March term of the Washington common pleas, which commenced on the 4th of March. The judgment against the sheriff was not obtained until the 21st of March, 1843. The referee was authorized to infer, from the evidence, that the payment was made to the sheriff previous to the recovery of the judgment against him. At all events this was a question of fact for the determination of the referee. His decision we cannot disturb. Whether the $200 was paid to the sheriff, by the plaintiff, expressly upon the execution against the plaintiff, or upon the judgment against the sheriff, was also a question of fact for the decision of the referee. I think the evidence warranted his finding that it was paid by the plaintiff on the execution against himself. The sheriff had levied on the plaintiff’s property, and had told him that he would sell it unless the debt was paid. The sheriff having made a levy during the life of the execution, was authorized to sell after the return day, at least until the recovery of the judgment against himself. The plaintiff had agreed with the sheriff to pay a
The counsel of the defendants contends that the judgment against the sheriff was a satisfaction of the judgment against the maker, and discharged the plaintiff; and that if the plaintiff afterwards made any payments he could not charge them against the defendants. I do not think the judgment against the sheriff was a satisfaction of the judgment against the maker, so as to discharge the plaintiff. The judgment against the sheriff did not deprive Martin, or the Exchange Bank, of the right to enforce the previous judgment against the plaintiff. The judgment against the sheriff was merely a cu-
The doctrine of estoppel has no application. An estoppel must be reciprocal. It must bind both parties, or neither. (Co. Litt. 352, a.) A judgment binds only the parties and their privies. (1 Phil. Ev. 324.) The plaintiff was not a party or privy to the judgment against the sheriff. Martin was not estopped by that judgment from «nforcing the judgment against the plaintiff. Not being himself estopped, he could not set up the judgment against the sheriff as an estoppel against the plaintiff, to prevent his recovery for any payments made by him on account of the original note, or of the judgment recovered thereon against him although made after the recovery against the sheriff.
A promise by the plaintiff, to the- sheriff, to pay the debt, made after the sheriff had been guilty of neglect in not returning the execution against Johnson, would have been a valid promise. The moral obligation to pay the debt would have been a sufficient consideration to uphold such promise. (Given v. Driggs, 1 Caines, 460. Doty v. Wilson, 14 John. 381.) The plaintiff in this case, before the recovery of the judgment against the sheriff, agreed with the latter to pay a
I cannot see any obstacle to the plaintiff’s remedy as a second endorsee, against Martin as the first endorser, for the recovery of the Whole amount of the note, since the plaintiff has paid the whole to the sheriff and to the attorney of the Albany Ex-' change Bank. But as the plaintiff has not moved to set aside the report of the feferee, we cannot set it aside upon the ground that the referee has rejected a part of the plaintiff’s claim against the defendants.
The plaintiff is entitled to recover either On the note, or on the count for money paid, laid out) and expended for the defendant’s intestate. Where an endorsee has paid Op the whole note and become the legal owner of it, he can either sue the endorser on the note, oi‘ for money had and received, or paid, laid out and expended. But where he has only paid it in part, he cannot sue on the note, not being the legal owner of it, but he can recover against the endorser for the money actually paid, on the money count, as for money paid, laid out and expended for the defendant at his request. (Butler v. Wright, 20 John. 367. 2 Wend. 369, S. C. 6 Id. 290, N C. in error.)
The referee probably allowed to the plaintiff the sheriff’s fees on the execution against him. The plaintiff was not entitled to an allowance for the payment of these fees, unless he endorsed the note for the accommodation of Martin. A person who makes or endorses an accommodation note, for the accommodation of a party thereto, is regarded as a surety, and can charge such party with the costs of a suit for the collection of the note, which he may have been compelled to pay. (Hubbly v. Brown, 16 John. 70. Jones v. Brooke, 4 Taunt. 464. Chit. on Bills, 320. 1 Greenl. Ev. § 401. Bagnall v. Andrews, 7 Bing. 217. Skilding v. Warren, 15 John. 273.) I have doubts whether the note in question can be considered an accommodation note made to enable Martin to borrow
The motion to set aside the report of the referee must be denied, with costs.