5 Me. 504 | Me. | 1829
The defendants, being tenants in common of certain
At the trial, the principal question of fact was, whether Daniel Smith, in his negotiation with Ayer, acted for himself, or as the agent and in behalf of the defendants; and upon this point the jury were instructed, that if they believed he was acting merely as the agent or instrument of the defendants, they would find for the plaintiff$ but if, from the evidence, they believed that he was making and conducting a bargain for himself, although with the intention of transferring that bargain to the defendants, they would find for the defendants. The verdict being for the plaintiff, the jury have settled the fact that Daniel Smith was the agent of the defendants, and acted as such in making the purchase; and the case finds that he did not, either as principal or agent, request the plaintiff to become surety; but that the surety was procured by the defendants. The question then is, whether they are accountable to the plaintiff for having become surety for their agent, and at their request.
To the first point made in the defence, that the action should have been brought jointly by the plaintiff and Daniel, it is a sufficient an
Where different persons have distinct and separate claims, though standing in the same relative situation, or where their legal interests are several, if there be no express contract with.them jointly, they must enforce their claims by several suits. 1. Chitty on Pl. 8. As if there be two persons, and each of them advance money for a third, they cannot maintain a joint action, but each must sue severally. Birkley v. Presgrave 1. East 220. Brand v. Boulcott 3. Bos. & Pul. 235. The plaintiff has advanced money for the defendants, inasmuch as he has done it to discharge his liability, incurred at their request and for 'their benefit, and of course under an implied promise of indemnity; 3. Bl. Com. 163 ; and unless relieved from that promise, as contended by the counsel, they are bound inlaw to save him harmless.
But it is contended that the agreement or promise being merely verbal, is within the statute of frauds, and void, because for the debt of another.' However hard such a construction of that statute would operate upon the plaintiff, who has been induced, by the defendants’ representations, and for their benefit, to incur a liability for which he now seeks relief, and from which, in good faith, they ought to relieve him; yet, if such be the law, public policy requires that it be executed.
Was this a “ special promise to answer for the debt or default of another,” within the meaning of the statute ? In Perley v. Spring 12.
Neither can the promise be avoided as relating to the purchase of real estate. 'Between the parties in this suit, there was no “ contract for the sale of real estate, or any interest in or concerning the same.” The use to which the defendants applied the notes, did not affect the plaintiff’s liability as surety, neither could it affect his claim upon them for indemnity. He had become legally liable at the defendants’ request; they were benefited by that liability, and they either expressly promised indemnity, or the law raised that promise for 'them. In either case, the promise is not affected by the statute of frauds.
We are all of opinion that the instruction to the jury was corree^ and that there must be Judgment on the verdict.