Webb v. Steele

| Superior Court of New Hampshire | Jul 15, 1842

Parker, C. J.

The defendants by their receipt acknowledged that they received the property claimed in this suit, and promised to return it. Having failed to do this, when demanded, trover will lie. Cargill vs. Webb, (10 N. H. Rep. 199.)

Two of those who signed the receipt seem to have been defendants in the action upon which the attachment was made, and it does not appear that the third did not receive the property into his possession. If he did not, it may well be doubted whether he or they could be permitted to show that fact in avoidance of the receipt, the officer having made a return that he had attached the property. Had the receipt been given at the time of the service of the writ, such evidence could not have been received to contradict and avoid it. 8 N. H. Rep. 234, Morrison vs. Blodgett; (12 N. H. Rep. 344, Bruce vs. Pettingill.) And it is not apparent why a different rule should be applied to a receipt, fairly given, for the same purpose, at a date subsequent to the attachment, even if the property remained during the time in the possession of the debtor, or even if the attachment were nominal, without any possession of the property on the part of the sheriff.

If the action had been tried upon the general issue, the plaintiff, on the case before ns, would have been entitled to a verdict with nominal damages.

The receipt was given for the property attached, October 23, 1838. Judgment seems to have been recovered November term, 1838, and upon the 11th of December following a demand was made upon the defendants. Their neglect to deliver the property, according to the terms of their contract, was a conversion, for which this action was well commenced, May 6, 1839. At the time of its commencement the defendants were liable to pay the value of the property, or so much of it as was necessary to satisfy the execution. The subsequent payment of the execution did not defeat the right of action which had accrued, but was effectual to reduce the amount of the recovery to nominal damages. Such would have been the result if Webb had been the plaintiff in interest, but for his release, and this release cannot affect the plaintiffs in interest. The action was commenced for their benefit, Webb being only a nominal party, of which one of the defendants had notice.

The general principle deducible from the cases, and from the ordinary practice, is, that when one person has an equitable right, or claim, against another, which he can obtain only by a suit in the name of a third person, he may use the name of that person in an action to enforce his right. And such ¡third person cannot control the suit, nor will his admission, .subsequent to the time he ceased to have an interest, be evidence to defeat it. 6 Pick. R. 322, Eastman vs. Wright; 13 Mass. R. 304, Jones vs. Witter; 8 Greenl. R. 77, Hackett vs. Martin; 1 Fairf. R. 420, Matthews vs. Houghton; 20 Johns. R. 142, Frear vs. Evertson. But the holder must ■furnish to the plaintiff on the record ample indemnity against ,cqs.ts, ,if required.

The plaintiffs in interest, being the bondsmen of Webb, ,the plaintiff on the record, have contended that this payment .of -the .execution ought not to avail, because the receipt was taken at their instance, and for their benefit, and because the payment on the execution, as they allege, was received by the plaintiff on the record, in violation of an agreement made with them that Lucas should be present when the money was paid. They intended by this arrangement to secure the payment of the money to the creditors, whenever the execution was satisfied. But the fact that Webb received the money, and applied it to the discharge of the execution, in violation of this agreement, and the fact that he has paid over but part of the amount thus received, cannot alter the case.

The argument overlooks the object and purpose for which the receipt was given, and the security which was effected by it.

Where an attachment has been made, and a receipt taken, it stands as security that the property shall be forthcoming when demanded, or the debt be otherwise satisfied. If, before judgment, and before any demand, the action is settled, the receiptor is thereby discharged. 10 N. H. Rep. 9, Whitney vs. Farwell. And so a payment of the execution, after judgment, discharges the receipt, unless there has been a previous demand creating a cause of action. The receipt is not a security that the money, when collected upon the execution, shall be paid over to the creditor. With that the receipters, as such, have nothing to do. And it does not appear in this case that they have assumed any obligation beyond that imposed by the receipt. The fact that the bondsmen of the plaintiff were active in procuring the receipt, cannot extend the obligation of it beyond its ordinary import. Although the receipt was taken at the instance of the bondsmen, and for their security, when the execution was delivered to Webb for collection he had a right to receive the money and discharge it. It was placed in his hands for that very purpose. And when he received the money, and discharged the execution, the purpose of the receipt was answered, although a cause of action remained, by reason of the breach of the obligation which occurred upon the previous demand and the neglect to deliver the property. The payment of the execution subsequent to that, as we have seen, could only be given in evidence to reduce the damages, not to defeat the action entirely.

Whether Webb, paid over the amount received, might be a matter of much import to his bondsmen ; but the receipt cannot be held to be a contract securing the payment of the money by Webb to the creditors, when collected upon the execution. Nor can the fact that Webb, Steele and Dean agreed that Lucas should be present when the money should be paid upon the execution, alter the case. Massure was no party to that agreement, and it could not extend any liability upon the receipt. It was a personal arrangement among those who made it, which cannot have a legal effect upon this action.

It does not appear that the execution was discharged collusively without payment, and it is not necessary, therefore, to consider what effect such a circumstance might have had upon the case.

The plaintiffs in interest should have taken measures to have the execution placed in the hands of some other deputy than Webb ; or if they could not avoid that, they might have protected themselves by a settlement with the creditors, after the demand upon the receipters’.

We have thus far considered the rights of the parties, as •they would have existed had the case been tried upon the issue first joined.

But the plea subsequently filed, at November term, 1841, and the issue joined on that, lead to a different result.

By pleading puis darrein continuance a defendant waives his former plea. 1 id. Raymond 693, Barber vs. Palmer; Freeman's R. 262, Abbot vs. Rugesley. It is said to be dangerous to rely upon such a plea without due consideration, for it confesses the matter which was before in dispute between the parties. 3 Black. Com. 317; Bull. N. P. 309; and see Cro. Eliz. 4.9, Cockaigne vs. Witnam.

The defendants having pleaded a discharge by the plaintiff, since the last continuance, the replication filed alleged that the release was obtained from the plaintiff by the fraud and covin of the defendants ; and this averment is traversed, and issue joined upon the traverse. The only matter therefore to be tried in the case was, whether this discharge was thus obtained by a fraud upon Webb, the plaintiff on the record ; and of this there is no evidence whatever.

The testimony adduced tended to show that third persons had an interest in the suit, and that a release by the plaintiff, if admitted, would operate as a fraud upon them. But the pleadings raise no such question. The replication alleges fraud upon the plaintiff, generally, and by that the plaintiff on the record must be intended. If there were any fraud, the evidence shows the plaintiff a party to it, and not the subject of it.

On the present pleadings, therefore, the defendants are entitled to a verdict.

On the evidence before us, the plaintiff’s bondsmen had a right to commence the suit in his name. They were as equitably entitled to maintain an action upon it as the creditors would have been had it been handed over to them for their security. It is clear that Webb had no right to release. Instead of replying to the plea of release, they should have moved the court to set it aside, upon the ground that the nominal plaintiff had no interest in the suit; that his release was a fraud upon those who had; and that' the defendants knew this, and could not therefore be permitted to obtain and plead a release from one who was not the actual party. 1 Salk. 260, Anonymous ; 1 Dong. 407, Payne vs. Rogers; 7 Moore 617, Manning vs. Cox; Chitty on Con. 779, 5th Am. Ed. and cases cited; 1 B. & P. 447, Legh vs. Legh; 7 Taunt. 48, Hickey vs. Burt; 4 B. & Ald. 419, Innell vs. Newnan; 7 Taunt. 9, Doe vs. Franklin; 6 N. H. Rep. 88, Horn vs. Whittier. The court may order the release to be delivered up in such cases. But courts of law will not interfere in a summary manner, and set aside a release, unless the fraud is clearly made to appear. 5 Bing. N. C. 688, Crook vs. Stephens.

If doubts exist respecting the fact, a replication, setting forth specially that the plaintiff on the record had no interest in the suit, which was prosecuted for the beneiit of others, stating their interest, and then alleging that the defendants had notice of this, and that the release was made in fraud of their interest, may raise an issue to the jury. Craib vs. D’Aeth, 7 D. & E. 670, note b; 6 Pick. R. 323, Eastman vs. Wright.

Where a release comes in as matter of evidence, under a brief statement, it may be shown to be fraudulent, upon the trial.

The verdict for the plaintiffs must be set aside; but as there has been a mistake in the pleadings, as well as in the trial, instead of entering judgment for the defendants, we may, if the party in interest desire it, give them leave to withdraw the replication, and leave the case for further proceedings.

Verdict set aside, and leave to withdraw the replication.