6 Wend. 284 | Court for the Trial of Impeachments and Correction of Errors | 1830
The following opinion was delivered :
The testimony was sufficient to take the case out of the statute of limitations, as all the payments were made to the bank by Butler within six years after the promise of Wright to pay the demand as fast as he could, and before the statute of limitations had attached. This suit was brought within six years thereafter. If Butler had not paid these sums until after the statute had actually run as against Wright, it would have presented an entirely different question ; it could hardly have been said in such case that money had been paid by Butler for the defendant, if it had been paid on a demand for which the latter was no longer liable, either to the endorsee or to the bank.
The evidence of the demand and notice of non-payment was, under the circumstances, sufficient to authorize the jury to find that the demand of payment of the note was regularly made, and that notice of non-payment was given to the endorsers. Again ; the record of the former recovery between these parties, in which the same question necessarily arose and was decided by the jury, was in evidence ; and this alone was sufficient, if not conclusive, to establish the fact of demand and notice. 4 Haywood, 208. 2 Wash. Rep. 64. 2 Hen. & Munf. 55. 5 Conn. Rep. 550. In actions where the former recovery can be set up in pleading by way
If the plaintiff was entitled to recover on the money counts In the first suit only for the amount which he had then paid, that recovery can be no bar to the present action, which is for an entirely different debt, although it grows out of the same transaction. That recovery was as for so much money paid for the defendant at his request, and no more could be recovered than the plaintiff had actually paid at that time. The request is implied from the situation of the parties, and from the legal liability of the defendant to indemnify the plaintiff, or to repay him whatever he might be liable to pay on the note; but the implied promise, which was the foundation of the first suit, was to pay the amount which he had then paid, Et is like the case of principal and surety, where the request to pay is implied from the legal liability of the latter, incurred for the benefit of the former. The moment the surety has been compelled to pay any thing on account of the suretyship, he may bring an action for money paid, and the law raises a promise "to repay the amount; but it does not raise a promise to pay any farther amount until he has been compelled to pay more, as it cannot then be known that the principal will not himself prevent the necessity of farther payment. Whether in such a case the court would permit several actions to be brought, where all the payments had been made previous to the commencement of the first suit, is not necessary to be determined in this cause. The defendant always has it in his power to prevent any suit by paying what is due, if he is solvent; and if he is irresponsible, there is very little danger that those who have been obliged to pay money on his account, will risk the chances of further loss by bringing several suits, when one is sufficient to obtain the demand.
It being the unanimous opinion of this court that the judgment of the supreme court ought to be affirmed, it was affirmed accordingly.