State ex rel. Murray v. Bishop

| Md. | Mar 22, 1866

Bartol, J.,

delivered the opinion of the Court.

We entertain no doubt whatever that the breaches alleged in the amended nar. are within the conditions of the bond sued on, and that the fourth plea of the defendants would be no defence to the action, but rvould be bad on demurrer. The object of the guardian bond is to secure the ward against the illegal disposition of his property by the guardian, or its maladministration ; and where a guardian illegally sells and transfers .the property of the ward contrary to the Act of Assembly, without a previous order of the Orphans’ Court, and converts the proceeds to his own use, it is no answer to an action on the bond by the ward ; that under the Act of Assembly the sale itself is void, and passed no title to the purchaser. In such case it is clear that the action could be maintained; and if nothing else appeared the measure of damages would he the value of the property illegally converted.

The case before us however is not presented in this form, it arises upon an agreed statement facts, (ante pp. 310 to 317,) and the only question presented is, what is the true measure of damages upon the facts stated.

In the case of the Mayor and City Council of Baltimore, vs. Norman, 4 Md. Rep., 352, it was decided that a transfer of stock standing in the name of a ward, made hy a guardian without the order of the Orphans’ Court, was under the Act of 1843, ch. 304, void, and the rights of the ward were not affected by it.

It thus ajrpears that in a case like this, the ward is not confined to his action upon the bond ; but has the cumulative remedy against the corporation, may repudiate the sale as void, and recover the stock thus illegally transferred. See also Chew & Goldsborough vs. The Bank of Baltimore, 14 Md. Rep., 300.

In this case it appears from the facts stated that the eestuis que use have recovered from the Eredericktown Turnpike Road Company, and the Union Manufacturing Company, the value of the shares of stock in those companies respectively, which had been illegally transferred by their guardian, and the question is whether that fact reduces the measure of damages in this action, or whether they are entitled to recover in this suit the same amount as if the stock had been lost to them and they had received no indemnity or compensation whatever from the companies. The mere statement of this question, it seems to us, carries with it its own solution. Ko authority need be cited to establish the familiar proposition, that where a party has cumulative remedies against one person or several persons to recover compensation for a tort, he cannot after he has recovered compensation in one form of action recover from the same person indemnity for the same wrong in another form of action ; nor, if the remedy be against several, and compensation be recovered from one, can damages for the same cause of action be afterwards recovered against the others. The measure of damages in this suit is the loss actually suffered by the eestuis que use, from the breach of the condition of the bond committed by the guardian, and if the sale of their stock was void under the Act of 1843, and they have in fact had it or its value restored to them, by the companies, then, though this fact does not defeat this action, it reduces the right of the plaintiff to recover nominal damages only, and according to the agreement in the case, a judgment for the defendants was properly entered.

It appears from the statement of facts, that the two companies made it a condition precedent to their restoring the stock or its value, that this suit on the bond should be instituted, and in conformity with that requirement this suit was brought, and is entered for their use and really prosecuted for their benefit. The appellants have relied upon this fact as material in the decision of the case, and have argued that it falls within the principle decided in Merryman vs. State, at the instance of Harris, use of Murray, 5 H. & J., 423, and Whiting, use of Sun Mutual Ins. Co. vs. Independent Mutual Ins. Co., 15 Md. Rep., 297.

But the distinction between those cases and this is very obvious ; in them it was held that a defendant could not claim exemption from liability for his own debt or on his own contract, or reduce the amount of the plaintiff’s recovery, on the ground that some other person who was a stranger to him and not liable to the plaintiff for the same debt, or in respect of the same cause of action, had under a mistake of facts or of law, paid and indemnified the plaintiff. In such case the payment does not inure to the benefit of the defendant, and this for obvious reasons. If the payment were made under a mistake of fact, the plaintiff would be liable in an action by the party from whom he had received, and if paid under a mistake of law, although he could not be compelled by an action to pay it back, yet in good conscience he ought to do so, and in neither case could the defendant, who is a stranger to the transaction, claim that the plaintiff should retain the sum so received by him from others, so that he (the defendant) may be exempt from liability upon his own contract to which they are strangers.

Here the companies were not strangers to the transaction upon which the plaintiff’s right of action arose, the illegal transfer of their stock; on the contrary they were in contemplation of law, tort fesofs, equally with Richard O. Murray, the guardian, and were alike responsible to the wards for the stock ór its value. They might be entitled to their action against Richard O. Murray, to recover back the price paid him for the stock, but they have no right of action on the guardians’ bond, and cannot therefore legally claim that in this suit a larger sum should be recovered than if the case had not been entered for their use.

(Decided March 22nd, 1866.)

This Court being of opinion that upon the facts stated, the original cestuis que use are entitled to recover no more than nominal damages, the judgment appealed from will he affirmed.

Judgment affirmed,.