Herrick v. Bean , 20 Me. 51 ( 1841 )

The opinion of the Court was by

Siiepley J.

The plaintiff being the owner of certain lands made a contract for the sale of them to R. M. N. Smyth, who contracted to sell them to the defendant. Before the conveyance, which was from the plaintiff to the defendant, certain representations were made respecting them, which were alleged to be fraudulent. The defendant afterward filed his bill against the plaintiff, and such proceedings were had as resulted in the recovery of a judgment against the plaintiff for $399,51, damages, and $120,84, costs. 3 Fairf. 262. Whthe that suit was pending, on the first of October, 1833, R. M. N. Smyth with Edward Smith, as his surety, executed a bond to the plaintiff, conditioned to save him harmless from all damages and costs arising out of it. On the twenty-third of the same October, the plaintiff delivered to E. &, S. Smith a negotiable promissory note, made by the defendant and others in part payment for the land, as the property of R. M. N. Smyth, who states, that it was held by them “ as security for the signature of E. Smith on the bond and for other transactions.”

On this note E. & S. Smith had recovered a judgment against the defendant for about $2300, which, as Strickland says, the defendant informed him, was “ paid by $830,50, cash, $959,55, being a receipt of Smith’s for land deeded back, and the execution, Bean v. Herrick, was received in offset of the execution against him.” And there is testimony that Bean said his execution against Herrick was paid. And so far as it respects Bean there can be no doubt, that he had received his pay for it by having it allowed in part payment of the execution in favor of the Smiths against him. The effect of the reception of that execution by the officer for such a purpose was not in law a satisfaction of that judgment. The delivery to the officer, as the agent for the Smiths, being for a valuable consideration, would transfer the equitable interest in it to them. There must be other proof than the mere delivery for the above purpose to shew a payment by the plaintiff. The fact that the beneficial interest in the execution had vested in E. & S. Smith, and that one of them was bound to indemnify the plaintiff against it, would not operate as a payment by the plaintiff or his agent. Adverse judgments between the same parties are not extinguished but by an order of the Court, by some act of the parties, or some action of an officer having both executions for collection. It might in this case have been very equitable, and perhaps on motion the Court might have ordered, that the lesser judgment should be satisfied by setting it off against so much of the greater, but until some other act than the possession of the execution by a firm, one of which was bound as a surety for another to pay it, both would continue in force. Whether the execution, Bean v. Herrick, was paid or assigned was submitted to the jury, who must have found, that it was assigned by delivery. And if so assigned, it remained unsatisfied so far as it respected the plaintiff; and Edward Smith, although a- surety in manner before stated, might legally enforce the collection of it, or assign it bona fide to others. And the plaintiff in such case could have no legal ground of complaint against the defendant for permitting it to be collected, or for giving an order to the officer to pay the money to the assignee. There could be no foundation for the position assumed by the plaintiff, that he had paid the money twice.

It is insisted, that R. M. N. Smyth w'as not a competent witness for the defendant. If the plaintiff should prevail in this suit on the ground,, that the Smiths had paid the execution for him before he paid it himself, the witness would be relieved from his bond to the plaintiff and be liable to Edward Smith, and in case of failure to recover be would continue liable to the plaintiff. The only difference to the witness would be a change of his liability from one to the other, and any bias on his mind arising out of a preference of one to the other would effect his credibility not his competency.

The statement of Mr. Allen was not received to contradict, vary, or change the legal effect of the written order, but to shew the circumstances under which it was drawn, and that the consideration for it was the former assignment or delivery of the execution, and not any such new or beneficial interest as would constitute a second payment to him, And this he might properly shew, for it tended to rebut the allegation in the writ, that he had received money, to which the plaintiff was equitably entitled. The case was presented to .the jury in sucha manner that, they must have found, that the payment to defendant was made, not by the plaintiff, but by the Smiths, and it is unnecessary therefore to inquire how far the defendant might have been liable as the party to the record, if the execution had been in fact twice paid by the defendant.

Exceptions overruled.