Duncan v. Keiffer

3 Binn. 126 | Pa. | 1810

Tilghman C. J.

delivered the court’s opinion.

The plaintiff was bound as security for the defendants in a bond to Peter Groff. He was sued on this bond, judgment obtained against him, and a ca. sa. issued on which he was arrested. While in custody of the sheriff under this arrest, it was agreed between the plaintiff and M Duncan one of the defendants, that Duncan should pay half of the debt, and the plaintiff should pay the other half for Devalt Keiffer the other defendant, who was his brother. After this agreement Duncan did pay his half, and the plaintiff paid the other half. The question is, whether Duncan is liable for any part of the money so paid by the plaintiff.

if no agreement had taken place, the law would have implied a promise from both defendants to reimburse the plaintiff for all money paid by him on account of this bond. But before he paid any thing, he made the agreement, which leaves no room for the implication which the law would otherwise have made. It is said that the agreement is nudum pactum, because the plaintiff received no consideration. But the question is not whether the plaintiff could have been compelled to pay the one half of this debt for his brother. He has actually paid it, and now comes to recover it back from the defendants contrary to his agreement. This he cannot do. There was nothing hard or improper in the agreement.' It placed the two defendants on the footing on which in equity they ought to stand with respect to each other, that is to say, each to pay half. And no one can say whether in consequence of this agreement, Duncan may not have made greater exertions to pay his half, and made the payment quicker than he otherwise would have done; for it is to be observed, that at the time of making the agreement, the plaintiff, having paid no money, could not have supported an. action for money paid on account of the defendants.

The case is very much strengthened on the part of Duncan, from the circumstance of the estate of Devalt Keiffer having been assigned to the plaintiff and his two other brothers, for the purpose of paying his debts. It is true, it was appropriated in the first instance to the payment of certain debts, of which that in question was not one. But the surplus, if any, was to be restored to Devalt,,nor do we know whether or not there was a surplus. If I understand the> opinion of the court of Common Pleas, it was that this consideration should have no weight, whatever might be the amount of the property of Devalt Keiffer in the hands of his brothers. In this I think they were wrong; for although such matter might not be a subject of set-off against the plaintiff, yet certainly it would afford good ground for the plaintiff’s assu.mption to pay his brother’s debt.

On the whole we are of opinion that the judgment of the court of Common Pleas was erroneous and should be reversed. A venire facias ele novo is awarded.

judgment reversed, and Venire de novo.