Doremus & Wilbur v. Selden

| N.Y. Sup. Ct. | Aug 15, 1821

Spencer, Ch. J.

delivered the opinion of the Court. The principal question is, whether the plaintiffs can maintain a joint suit, on the evidence in this casé ?

The plaintiffs’ right to recover does not depend on a joint liability, as endorsers of the note, on which the defendants were prior endorsers, but on the fact, whether the plaintiffs jointly paid Ihe note: Nor does this cause involve the question how far a negotiable note may be deemed a payment of a precedent debt, when taken as payment. The plaintiffs were partners, and prior to any payment of the note endorsed by them, and which is the foundation of this suit, had become insolvent.

The assignees of Bostwick & Sterling, (Haggerty and Cairns,) who were the holders of the note made by Davison, Day, & Pierson, received of Doremus, on the 9th of August, 1817, four notes, amounting together to two hundred and twelve dollars, endorsed by N. Weed, and two of which, being one hundred and six dollars, were paid prior to th^ 13th of February, 1818. The assignees also received of Wilbur, the costs'of the suit against Doremus Sr Wilbur, and A. Ogden 8r Co., and also a note made by Wilbur to N• Sr, H. Weed, and" by them endorsed, for four hundred and thirty-nine dollars and 82 cents, dated the 13th of February, 1818, payable in six months,-ffn full of their liability on the note of Davison, Day, Sr Pierson, and wholly discharged them.

In Graham and others v. Robertson, (2 Term Rep. 282.) the plaintiffs and two other persons were joint owners of a privateer; the defendants were owners of another privateer; a prize was taken, condemned, and sold, by agreement between the owners of the two ships. The sentence of condemnation having been afterwards reversed, restitution with costs was awarded, which were' paid solely by the plaintiffs, the two other partners, in the interim, having become bankrupts. It was held, that the plaintiffs could not maintain the action for a moiety of the sum paid, for it was either a partnership transaction, and then all the partners ought to be joined, or it stood as-a separate payment by each individual, when each should have brought a separate action. This case leaves the point undecided, whether all the partners, as well those who paid, as those who had become bankrupts and paid nothing, could maintain the action. The case of Osborne and another v. Harper (5 East, 225.) bears more strongly on the question. There, A. B and C. having dissolved partnership, C. after the dissolution, drew bills, in the partnership firm, in favour of D., he being ignorant of the dissolution. D. sued all the former partners, and recovered judgment. A. and B., after-wards, through their attorney, satisfied the judgment, and brought a joint action against D.; and the question was whether the action could be sustained by A. and B. jointly or not. The Court were of opinion, that unless it appeared, in point of fact, that the damages in the former action had been paid out of a joint fund or stock, a joint action could not be supported; for without a joint fund there could not be a joint payment; and the action was finally maintained upon its being shown to the Court, that their attorney had advanced the five hundred pounds on the joint credit of the plaintiffs ; and Lord Ellenborougk said, that created á joint fund for the discharge of the execution ; and, consequently, a joint action would lie. Brand and Herbert v. Boulcott, (3 Bos. & Pull. 235.) coincides with this doctrine.

It appears to me that the principle advanced in Osborne and another v. Harper is the true one : That to enable several persons to join in demanding the repayment of a sum of money, it ought to have been paid out of a joint fund. Here the plaintiff's contributed to the payment separately, and in unequal parts, without any community of interest in the money paid, and, therefore, they cannot maintain a joint suit.

Judgment for the defendants.