Hotchkiss v. Downs

2 Conn. 136 | Conn. | 1816

Swift, Ch. J.

In this case, the plaintiff contends, that the defendant sets np a parol contract not executed in bar of an existing right of action, when by law such contract can be no bar,

It is admitted, that a parol contract not executed cannot be pleaded in bar of an existing legal right. It is also true, that a parol contract, when broken, cannot be released by parol; but it is equally true, that it can be, before broken.

The argument of the plaintiff, in this case, is grounded on a mistaken assumption of a fact. It is supposed, that this agreement is set up to avoid a legal right, existing at the time the contract was made : but on examining the motion for a new trial, it will appear otherwise. The plaintiffs and de fendant had been indorsers and signers of notes for each other as sureties $ for which they were mutually liable, and apart, of which had been received by each. At the time the agreement set up by the defendant was made, neither party had made any payments of these debts. Of course, the plaintiffs, at that time, had no right of action against the defendant. They were only liable to pay money for the defendant, in case ho did not pay it : but no right of action accrued until an actual payment ; for the mere liability to pay money for another as surety is no ground of action. In this state of things, the parties came together, and having ascertained the proportion of each to pay, mutually agreed to pay it. Here was no parol contract to release or defeat an existing right of action ; for none existed. Before any right of action accrued, the parties agreed in what manner and proportion the debts should be paid. If a parol contract, before it is broken, can be released by parol, it follows, that the parties may agree in what manner it shall he paid, or satisfied. This was, then, a valid agreement, on good consideration $ and the parties were bound to pay the proportions they had ascertained. The plaintiffs, then, when they paid these debts for which this action is brought, were paying their own proper debts, pursuant to their agreement. They paid no debt of the defendant, or any money on his account, unless they paid more than was their proportion to pay, according to the agreement; and the court directed the jury, if they found the plaintiffs had paid more than they were obliged to pay by that agreement, to find a verdict in their favour.

1 am of opinion that the charge was correct, and that a new trial ought not to be granted.

In this opinion Trtjmbtoi, Edmond, Smith, Braisard, B am win, Goddard, and Hosmer, Js. concurred. Go led, J.

From the view which I have taken of the case, l am unable to concur in the opinion of the Court. The claim of the plaintiffs is, in effect, that they, as sureties for the defendant, have paid the money demanded, in satisfaction of his proper debt. Thus far, the case is the common one, of an indebitatus assumpsit, for the recovery of money, which one person was bound to pay, and has paid, for the use of another. But it is objected, that the plaintiffs are precluded from recovering in this form of aclion, by the special agreement; which, it is said, supersedes, or extinguishes the implied promise, that might, otherw ise, have arisen out of the transaction, and imposes upon the plaintiffs a condition precedent, which they have not performed. There is no doubt, that the general assumpsit, which the law would otherwise imply, from the acts of parties, in certain cases, may be excluded, by a special undertaking, accompanying those acts. Thus, if upon a sale of goods, an express promise is made, to pay a fixed price for them the vendor cannot' recover in an implied assumpsit, upon a quantum valebant: and many similar cases might be stairu. jn w(,jc]t the maxim applies, expressmn facit cessare taciturn, In all such cases, however, the special agreement is made at the time, and is, itself, a part of the original transaction, which constitutes the consideration j and is always repugnant, in some respect, to the general promise, which the law would otherwise raise from the facts : so that the evident i which establishes the express promise, necessarily disproves the implied one. And this, I take to be the precise ground, on which a special undertaking ever excludes an implied assumpsit.

But the case before us is open to no such objection. Here, there was, originally, a mutual implied promise, arisi nt from the act of each party, in becoming surety for 1 lit other, that each would repay to the other, what the latter, as his surety, should pay for his use. Whereas, the express promise, made after the former was raised, is, that, each party shall pay to third persons, what the other is bound, as surety, to pay for him. It is manifest, then, tha' the express and implied undertakings, though entirely distinct, are perfectly consistent, — stipulating payments to «lit■ ferent persons, in different events ; but not varying the respective duties to which the parties were subject, before the special agreement was made. And as that agreement remains unexecuted on both sides, and is thus practically abandoned j their rights appear to me, to be the same, as <l it had never been made.

In this view of the case, the special agreement is, in effect, nothing more, than an adjustment of the proportions, whir! the parties were before, as between themselves, respectiv ■ h bound to discharge. It might, therefore, as evidence of those proportions, be decisive between them ; but cannot, as I conceive, have any other effect. In the direction to the jury, however, the special undertaking, by the plaintiffs, to repay their proportion of the money borrowed, is treated as a condition precedent, upon the performance of which their right of action is made to depend. But I am wholly unabh to perceive how their claim to recover in this action, can, in any view of the case, be affected by that undertaking, h the suit had been brought on the special agreement, the question, whether their engagement amounted to a condi sion precedent, might have arisen. But, a3 the action is founded upon the implied promise, I cannot discover, how that point could possibly be made, The only question, arising, in this action, out of the special agreement, is, whether it extinguishes the implied promise: and for the reasons already given, I think it does not. I am, therefore, of opinion, that the plaintiffs are entitled to a new trial.

New trial not to be granted.