Eddy v. O'Hara

14 Wend. 221 | N.Y. Sup. Ct. | 1835

By the Court,

Savage, Ch. J.

It has been often decided in the English courts that the payment of money into court, which should follow a plea of tender, admits that the plaintiff has a right of action. 2 T. R. 464. 9 East, 326. 6 id. 570. 2 id. 128. In this court, also it has been decided that the payment of money into court is an admission of the cause of action alleged in the declaration. 7 Johns. R. 315, 18. The same facts are admitted by the tender out of court as are admitted by payment of money into court.

The statute under which these proceedings were had is as follows : “ If process shall have issued against two or more persons jointly indebted, and shall have been personally served upon either of the defendants, the defendant who may have been served with process shall answer to the plaintiff; and the judgment in such case, if rendered in favor of the plaintiff, shall be against all the defendants, in the same manner as if all had been served with the process; but execution shall issue only in the manner hereinafter directed.” Such judgment shall be conclusive evidence of the liability of the defendant who was personally served with process in the suit,or who appeared therein; but against every other defendant, it shall be evidence only of the extent of the plaintiff's demand after the liability of such defendant shall have been established by other evidence. 2 R. S. 247, § 122, 3. See substantially the same provisions in 2 R. S. 377, § 1, 2, 3, 4. The revised laws of 1813, and also before that time, authorized the same form of proceeding against joint debtors, where all were not brought into court; but they did not declare what defence might be made by the parties not brought into court in an action upon such judgment. It was intimated by the court that such defendant might set up any defence in such action which he might, have done in the original suit in his individual capacity. 6 Johns. R. 99. 10 id. 66. See also 6 Cowen, 696, 7. The legislature by the revised statutes have settled that question, by declaring that the judgment shall be evidence of the extent of the. plaintiff’s demand, but not of the liability of the defendants not brought into court. We may suppose one reason for that distinction to be, that the defendant brought into court was not interested in contesting the liability of his co-defendants ; but the amount of the demand was equally interesting to .all of them. That question, therefore, having been settled in a suit where it was properly the point in issue, shall be conclusive upon the other joint debtors ; but the question whether joint debtors or not, is not settled by the former judgment. That is a point to be proved by the plaintiff by testimony other than the judgment. This view of the statute relieves this case from all difficulty. Eddy, who appeared in the suit, might have .objected, that as the plaintiff had declared upon a joint cause of action, he was bound to prove it: but he might waive that proof, and by his silence he did so; Hathaway cannot object, because individually he cannot be prejudiced by it. If it be said that Hathaway’s joint property is liable, and therefore he is interested, the answer is, that a person legally representing that joint property, has waived the proof. So far, therefore, as this point was concerned, the plaintiff was entitled to recover before the justice. Upon the other point in the cause, the question is whether the defendant proved a tender. If a tender be pleaded, the money must be paid into court. Grah. Pr. 459. That was not done in this case, and therefore the defence on this ground failed. Besides, upon the evidence, the defendant’s agent refused to make the payment unless the plaintiff would strike off a certain endorsement, which seems to have been put there by way of compromising a trespass, as the plaintiff claimed. The plaintiff told the agent to leave as much money as he pleased, but the agent was not authorized to make any settlement unless O’Hara would strike off the endorsement, and accept the whole amount. This, I apprehend, was not such an unqualified offer as was required to constitute a tender. This point was erroneously decided in the justice's court, and the common pleas correctly reversed the judgment. The judgment, for costs against both was correct, as both appeared upon the certiorari.

Judgment affirmed, single costs.