Butler v. Wright

2 Wend. 369 | N.Y. Sup. Ct. | 1829

By the Court, Sutherland, J.

It was held in the case between these same parties, (20 Johns. R. 367,) that though the plaintiff could not maintain an action on the note, as it had not been fully paid, and was the property of the bank; yet that he might sustain the action against the defendant, and recover the amount paid by him, on the count for money paid, laid out and expended for the defendant at his request. Chief Justice Spencer, who delivered the opinion of the court, observes, that as regards the plaintiff, the defendant was under a legal obligation to take up the note when it became due, and when it was ascertained that the maker had failed to pay it, that it could not be questioned that the plaintiff had a right, when he was called on by the bank, to pay up the note ; and that if he had done so, his remedy against the defendant, either by declaring on the note or for money paid, laid out and expended, would have been perfect. In answer to the objection which was urged by the counsel upon the argument, that the defendant, if this action was sustained, would be subjected not only to a suit by the plaintiff, but also to a suit by the bank for the unpaid balance of the note, it is observed that it is not for the defendant to urge such an objection; because, by so doing, he takes advantage of his own wrong, (in not paying the note,) which is against a maxim of the law, that it is not only his duty but in his power to remove the objection at once, by paying the balance due to the bank, and if he performed his duty, he would not be subjected to two suits; and it is asked, suppose the plaintiff is unable to pay any thing more to the bank, is lie to lose the money he has paid 1 or, suppose a third person, at the instance of the defendant, had paid a part of the note to the bank, it could not be objected, in a suit brought for the money thus paid, that the defendant would be liable to two suits ; and the chief justice concludes by observing, “ On the grounds that the plaintiff has paid $380 on accomu! of a debt, which was demandable both from the plaintiff and defendant, but which, as between these parties, the defend-ant ought to have paid, and that the plaintiff himself has not attempted to split up or subdivide any cause of action he has against the defendant; that in making the objection, the defendant rests on his own wrongful act; and that if he is exposed to another suit, he can remove that objection by fulfilling his contract with the plaintiff, I am of opinion that he is liable in this action.”

The principles here advanced and established appear to me folly to authorize and sustain the action which was commenced in October term, 1826, to recover from the defendant the amount of certain payments made by the plaintiff to the bank upon this note, subsequent to the bringing of the first suit. If he can recover for one partial payment under the money counts, I do not perceive why he cannot sustain an action for every payment made by him in good faith, and with the bona fide intent of reducing or extinguishing the debt. If the defendant was in fault for not preventing the first suit by satisfying the note, he certainly is not less so now, after so great a lapse of time in permitting the note to remain unpaid.

The former recovery can be no bar to the present action, although the evidence in both was in part the same. It was necessary in both suits, in order to entitle the plaintiff to recover, to shew that the defendant had been charged as endorser by a regular demand of the maker, and notice to the defendant of non-payment. This evidence was indispensable to make out the fact, that in judgment of law the money was paid for his use; for unless he was charged as endorser, the payment was not for his use or benefit. But the recovery was not upon the note, for it did not belong to the plaintiff, hut was simply for the money paid by him; so in this action the plaintiff seeks to recover other money paid by him since the commencement of the first suit, and which, of course, could not have been embraced in the first judgment. The case of Phillips v. Berick, (16 Johns. R. 136,) decides that the record of a former recovery, apparently for the same cause of action as that which is the foundation of a subsequent suit, is prima facie evidence only that the demand had been once tried; and the plaintiff may repel it by shewing that it was a distinct demand, in relation to which no evidence had been offered in the former cause, and that it arose out of a distinct transaction. Now the real cause of action in this suit, is the money paid by the plaintiff to the bank since the first suit was commenced. The cause of action in that suit, was the money paid to the bank before the commencement of that action. They have no connection with each other. (6 Cowen, 228.)

2. I am inclined to think the evidence of demand and notice of non-payment to the endorser was prima facie sufficient. (Halliday v. Martinett, 20 Johns. R. 168. Hart & Lay v. Wilson & Gates, post.)

3. If the plaintiff’s cause of action is the money paid by him, and not the note, as was decided in 20 Johnson, then it is not barred by the statute of limitations. The suit was commenced in October term, 1826, and the first payment,proved was in 1821.

Motion for new trial denied.