31 N.C. 10 | N.C. | 1848
This was an action of assumpsit, in which the plaintiff declared in several counts:
1. On a promise to indemnify the plaintiff on a note for $600.
2. On a promise to indemnify the plaintiff on a note for $479.43.
3. On a promise to indemnify the plaintiff on a judgment of the Bank of Cape Fear against David Underwood, John Sellars and William C. Draughan.
4. To receive money paid on a judgment obtained on a note endorsed by the plaintiff, at the instance and request of the testator, John Sellars, as supplemental surety, and not as cosurety with said John Sellars on a note of David Underwood.
5. To recover money laid out and expended for the use and benefit of the testator, John Sellars.
6. To recover money had and received by the testator, (11) John Sellars, for the use of the plaintiff.
The defendants pleaded the general issue and the statute of frauds. For the plaintiff it was proved that he endorsed a note for $600, payable to the Bank of Cape Fear, in which David Underwood was principal and the defendant's testator, John Sellars, surety, which was renewed from time to time until the note for $479.43 was given. It was further proved that a judgment was obtained on this note and the plaintiff was compelled to pay the sum of $278.21, which he sought to recover of the defendants. The plaintiff then proved by Underwood, the *18 principal in the note, that when he applied to the plaintiff to endorse for him he declined doing so unless he could be indemnified, which he (Underwood) promised should be done; that thereupon John Sellars, the testator, in consideration that Underwood would convey to him a large number of slaves to secure him as his (Underwood's) surety in this and other debts for which he (Sellars) was liable as his surety, promised to indemnify the plaintiff and save him from all loss in becoming endorser on Underwood's note; that Underwood did accordingly execute an absolute bill of sale to Sellars for a large number of slaves, and the plaintiff then endorsed the note for $600, and that the negroes were afterwards sold by Sellars, and he acknowledged he had in his hands funds with which to discharge the debt for which the plaintiff was liable as endorser. The defendants objected to the competency of Underwood as a witness to prove these facts, which objection was sustained by the court. Whereupon the plaintiff executed to him a release, and the defendants pleaded it since the last continuance in bar of the action. A motion was then made by the defendants' counsel that the plaintiff should be nonsuited, both on the ground that they were discharged by the release and that the defendants' liability, if any, was for the debt, default or miscarriage of another and (12) not for his own debt, and the plaintiff could not recover because the promise was not in writing, as required by the statute of frauds.
The court expressed an opinion that the action could not be sustained, and the plaintiff submitted to a judgment of nonsuit and appealed. We concur with his Honor that an action cannot be maintained upon the parol promise of indemnity. That is void by the statute of frauds. Underwood was under a legal liability to indemnify the plaintiff as his surety, and the promise, superadded by the intestate, comes within the words and meaning of the statute; it is a promise to answer for the default of another, and there being a consideration makes no difference; it required no statute to make void a promise not founded upon a consideration.
The true test is, Has the plaintiff a cause of action against another, to which the promise in question is superadded? If so, the statute applies. But if there is no debt for which another is already or is about to become answerable to the *19 plaintiff, or if the debt of the other is discharged and the promise in question is substituted, the statute does not apply; as, when a creditor discharges a debtor who is in custody, upon a promise of a third person to pay the debt, the original cause of action is gone by the effects of the discharge; the new promise is substituted.
We are of opinion that the effect of the release was misconceived. So far as there was a cause of action arising from the relation of cosuretyship under the act of 1807, the release to the principal is a bar; for a surety who seeks to recover from a cosurety a ratable part of money paid must take care to do no act which will prevent the cosurety from having (13) recourse against the principal, inasmuch as his right to contribution involves the duty of transferring to his cosurety a right to recover from the principal the amount which he is called upon to pay. If, therefore, he releases the principal, it is a discharge of the cosurety.
The case must be viewed as if no promise of indemnity had been made, for that is void by the statute; and as if no relation of cosuretyship had existed, for that is destroyed by the release.
There is, however, a fact in this case, to which the attention of the learned judge seems not to have been called, which entitles the plaintiff to recover upon the count for money paid, and as the nonsuit was submitted to, from the intimation of his Honor that the plaintiff could not recover upon the facts stated, the judgment must be reversed.
The intestate received property from Underwood, sold it, and acknowledged that "he had in his hands funds to discharge the debt." As soon as the intestate received the money the bank, although it had a cause of action on the note, had a new and distinct cause of action against the intestate, upon a promise implied by law from the receipt of the money to pay the debt.
It is well settled that if A is indebted to B and puts money in the hands of C to pay B, B may sue C for money had and received. 1 Chitty Pl., 4, and the cases there cited.
The plaintiff, who was forced to pay the bank, can truly allege that he has paid money which the intestate was under legal liability to pay, in consequence of the receipt of the money, and this, according to the authorities, gives him the equitable action, as it is termed, for money paid to the use of the intestate (Smith's Leading Cases, 1 vol., 55, note and cases cited). It cannot be objected that the plaintiff paid the money officiously, and falls under the rule that no one can make (14) *20 another his debtor without his consent; for, as his surety on the note, he was liable to the bank, and has been forced to pay a debt which the intestate ought to have paid.
In Hall v. Robinson,
PER CURIAM. Judgment reversed, and a venire de novo awarded.
Cited: Hoke v. Fleming,
(15)
