Manahan v. Gibbons

19 Johns. 109 | N.Y. Sup. Ct. | 1821

Spencer, Ch. J.

delivered the opinion of the Coürt. A judgment was confessed by Sweany Kearny, to the defendants, and the plaintiff, jointly, for 10,000 dollars, and execution was issued on this judgment. A portion of the judgment was collected, and the defendants, on the 2d of June, 1815, subscribed a paper, stating, that the property of Sweany Kearney had been sold, and the amount thereof settled, to between 400 and 500 dollars, and there being no more property to satisfy the residue, they discharged the execution, and requested the sheriff to return the same satisfied. In the distribution of the money collected, and notes delivered by Sweany <$/■ Kearney, the defendants excluded the plaintiff from any portion of the dividend, upon the allegation that his debt was infected by usury. The interest of the defendants, in the judgment, was distinct and several j they were creditors of Sweany <§• Kearney, as endorsers upon their notes, in their individual capacities. The plaintiff’s demand, also, was for monies individually lent to Sweany <$r Kearney. I think there can be no doubt, that the defendants actually received no more than the debts due-to them.

The points for our consideration are, whether the defendants, all of whom stood in the light of endorsers, were first to be paid their debts, and the plaintiff was to be paid out of the surplus ; or, whether they were all to be paid, in propprtion to their debts, rateably ? The other point is, whether a joint action will lie against the defendants 1

I am satisfied, that the parties, plaintiffs in the judgment against Sweany fy Kearney, were to be paid rateably. Sweany swears they were not to be paid in that manner, but that the defendants, who were endorsers, were to be first paid; but he is pointedly contradicted by Kearney. The joint judgment which would give equal rights to a rateable payment, decides the question between the conflicting testimony.

The remaining question is not free from difficulty ; but, it appears to me, that the defendants cannot be liable in this action,jointly. They,certainly, are notpartners in this transaction, and they had no joint interest in the fund created by the sale of Sweany & Kearney's property. The judgment was given to all the patties, for their convenience, and to secure an equal participation in the proceeds of the sale of their estate. The action is not for discharging the execu* tion, or for depriving the plaintiff, tortiously, of a right to which he was entitled; but it is. an action ex contractu, and the plaintiff’s claim rests on the count for money had and received by the defendants, to his use. The defendants have not jointly had and received any money to the plaintiff’s use. They have severally poclcetted a proportion of the money to which the plaintiff was entitled, but they have not jointly done so. In Osborne and another v. Harper, (5 East's Rep. 228.) the question was, whether the plaintiffs ought not to have associated with them other persons as plaintiffs. The Court said, it did not appear, in point of fact, that the damages in the former action had been paid out of any joint stock or fund, without which, they considered that a joint action for repayment of the sum advanced by the plaintiffs, for the use of the defendant, could not be supported; for, without a joint fund, out of which the payment was to bé made, there could be no joint payment. It cannot be doubted, that in this action, a joint contract must be proved. Here, the assumption, if any, is implied, and a promise cannot be implied against justice and equity. The foundation of the action for money had and received, is, that the defendant has money in his possession, to which the plaintiff is entitled ex cequo et bono. In my judgment, it would be against the principles of equity and good conscience, to imply a promise from one of the defendants, to pay to the plaintiff the whole amount received by all the defendants; for if a recovery be had in this action, one of the defendants may be compelled to pay the entire amount. If too many persons be made defendants, the plaintiff will be non-suited on the trial, if he fail in proving a joint contract. (1 Chitty's Pl. 31.) On the ground, therefore, that the defendants are not jointly liable to the plaintiff, judgment must he rendered for the defendants.

Judgment, for the defendants.