Opinion
(December Term, 1840.)
1. Where a surety brings an action of assumpsit for money paid for the use and at the request of the defendant, against his cosurety, to obtain contribution, it is not sufficient for him to show that he has given his note for the debt due by the principal, and that the same has been accepted by the creditor as a payment and discharge of the debt.
2. To entitle him to recover in this action, he must prove an actual payment in money, or in money's worth, such as bank notes, the note of a third person, or a horse or the like, which is valuable in itself to the surety who parts with it.
(287) ASSUMPSIT, brought by the plaintiff to recover contribution of the defendant as his cosurety. The case was tried at Fall Term, 1840, of RUTHERFORD, before Bailey, J. Several points were raised on the trial, by the defendant's counsel, which it is unnecessary to state, as only one was decided by this Court, that being fatal to the plaintiff's action. Under the charge of the judge below, the jury found a verdict for the plaintiff; a new trial was moved for and refused, and from the judgment the defendant appealed to the Supreme Court.
Saunders and Hoke for plaintiff.
Bynum for defendant.
The plaintiff, the defendant, and David Nowland were the joint sureties of John C. Elliot, as the administrator of James Hoard, deceased. Elliot died insolvent and indebted to the estate, and administration de bonis non was granted to the present plaintiff. The next of kin of Hoard filed their bill in the court of equity, and obtained a decree against the present plaintiff and Nowland for the balance due from Elliot; and issued an execution, which was returned "Satisfied." The mode in which it was satisfied was this: The present plaintiff gave to the creditor his note, with a surety, for one-half of the sum, and the creditor accepted the same in satisfaction, and Nowland settled the other half. This action of assumpsit for money paid to the use of the defendant and at his request, was then brought to obtain contribution from him.
On the trial the counsel for the defendant objected, amongst other things, that this action would not lie, as the plaintiff had only given his note for the money. But the court held that to be such a payment as would enable the plaintiff to maintain the action.
There has been a tendency towards relaxing the strict rule which requires the party to pay money before he can bring an action for money paid. It is, indeed, established that money's worth, as bank notes, a horse parted from at an agreed price, or the like, are to be looked upon as money, for the purposes of an action of this kind. In (288) New York it has, moreover, been held that if a surety give a note and the creditor accept it in satisfaction, and give a discharge of the original debt, it is sufficient to give the surety his action against the principal. Witherly v. Mann, 11 John., 518. That case has been followed by so many others that the doctrine may be considered as settled in that State. In some cases, doubtless, it may promote convenience and perhaps justice. When this case was first opened to us, we were favorably inclined towards it, upon the ground that the plaintiff was conclusively bound for the money, and that the defendant was discharged from his former liability, and so had all the benefit of a payment. It struck us, therefore, that he ought not to say the plaintiff had not paid the money. But we believe, upon consideration, that, having regard to the distinctive principles of actions, we are obliged to hold that the plaintiff has not entitled himself to this action as yet. In the instances of bank notes, property, or even passing a bill or note made by a third person and belonging to the surety, the party parts from a thing that is valuable in itself. But when he gives his own bond or note, he is, in fact, nothing out of pocket until he pays it. He has merely given a new security for the debt, and may never pay it. The discharge of the principal from the original demand is not sufficient to support the action; for that applies equally to a voluntary release given by the creditor at the instance of the surety, and in that case the action certainly would not lie. Now, there are many ways in which it may happen that the present plaintiff may escape from paying this debt. He may not be called on for it by the creditor; or he may become insolvent; or his note may be void, as founded on or connected with an usurious contract, for example, so that it is quite possible he may evade the payment. While that is so, however the parties may have streated the note in giving it, the law cannot deem it equivalent to money. The plaintiff is, as yet, none the poorer by the defendant, and until he shall be, we think the action for money paid cannot lie. It is against elementary principles that it should. If, indeed, there had been with us a series of adjudged cases, as in (289) New York, or even one judgment of this Court, we should, probably, have been willing, if not felt ourselves bound, to follow the precedent. But we do not know of any such case, and we do not feel authorized, against principle, to make the precedent. At one time it was held by Lord Kenyon, at Nisi Prius, and, it would seem, also by the Court of King's Bench, that a promissory note of the party's own, if taken in payment, might be considered as money. Barclay v. Gooch, 2 Esp., 571. But that case has not been followed; and whenever it has been since mentioned, it has been disapproved. It was questioned and disregarded in Taylor v. Higgins, 3 East, 169. In Maxwell v. Jameson, 2 Barn. and Alder., 51, the surety took up the note of his principal by giving his own bond to the creditor; but he was not allowed to recover for money paid. In that case the Court considered Barclay v. Gooch, and Taylor v. Higgins inconsistent with each other, and therefore followed the last, especially as it was consistent with principle. For these reasons, we award
PER CURIAM. Venire de novo.
Cited: Nowland v. Martin, post, 308; Reynolds v. Magness, 24 N.C. 30; Godfrey v. Leigh, 28 N.C. 396; Hall v. Whitaker, 29 N.C. 355; Cavaness v. Troy, 32 N.C. 318; Ponder v. Carter, 34 N.C. 243; Tiddy v. Harris, 101 N.C. 593.
(290)