Pursel v. Ellis , 5 Watts & Serg. 525 ( 1843 )

The opinion of the Court was delivered by

Rogers, J.

This is an action on the case on a count for money paid, laid out, and expended. By the agreements in evidence, it is stipulated that the vendees are to pay to the vendor $1000 in-hand, in the proportion of the value of the land which each took, according to an understanding between them, as their share of the purchase. The plaintiff alleges that he paid more than his proportion of the hand-money, and if this allegation be true, he is entitled to a contribution from the defendant in this form of action. Of the hand-money, the plaintiff, who was one of the purchasers, paid $605; each of the other purchasers, of whom the defendant was one, but $5. For the residue, viz., $385, Pursel, Ellis and Bodine, the vendees, gave their joint and several promissory note at 90 days, payable to the order of Robert R. Shoemaker, the vendor, at the Bank of Northumberland, with interest from the date, without defalcation. There is no evidence the note was paid. It was produced on the trial by the holder, and the charge is predicated on the position that it was unpaid, that it was a negotiable note, executed by Ellis as the maker, and Pursel and Bodine as sureties. The note is signed Robert Pursel, Thomas Ellis, and Abraham Bodine, and in that order; but, without stopping to inquire whether there is any evidence whatever that the parties to the note stood in the relation of principal and sureties, I shall take the fact as conceded, and examine the charge on that hypothesis.

The question is, whether this is such an instrument as to justify the instruction, that the amount overpaid can be recovered on a count for money -paid. On this point, these principles must be taken as settled. A surety cannot maintain this action until he has actually paid the money, though judgment may have been recovered against him and execution levied. To this, there is an an exception, for where a bill of exchange or negotiable note is given, and received in satisfaction of a debt, it will support a count for money paid. A distinction is taken between a bond and negotiable paper, because the latter is treated as money. A negotiable note, or bill of exchange, in the ordinary transactions of the commercial world, is equivalent to cash, and for this reason, will support a count for money paid. The following authorities are cited in support of the rule, and the exception. 7 Serg. & Rawle 238; 3 Penn. Rep. 380; 9 Pick. 337; 3 N. Hamp. 366; 8 Johns. 202 : 2 Vern. 213; 4 Pick. 447; 9 Mass. 553; 1 Hall 234, 6; 11 Johns. 518; 6 Greenl. 333. If, therefore, Ellis had given his own negotiable paper, or a note even, with other endorsers, it is conceded it would have fallen within the principles of the cases above cited. But what is the case in hand? Pursel, Ellis, and Bodine are indebted to Shoemaker, and for the amount of their indebtedness, give a joint and several note at 90 days, which at maturity, and yet, remains unpaid. Can then, Ellis, on the ground that he was the principal and the others sureties, support a count for money paid?

The first inquiry is, by whom was the money paid ? Certainly, .not by Ellis alone, but by virtue of their joint and several note. In the eye of reason, it is a payment by all the joint debtors. If it had in truth been actually paid at maturity, or afterwards, by the principal, it would alter the case; but it remains unsatisfied, and each is bound to the holder of the note for the whole amount of it. If the defendant be held liable, it may be, that he may be compelled to pay it again to the holder. And, conceding that they are sureties, yet equity will not oblige them to pay, while subject to a contingent liability. Thus, in Frantz v. Brown, (1 Penn. Rep. 257), it is held, that chancery will enjoin an obligee in a bond or his assignee from proceeding at law while the obligor remains a loser or in jeopardy as a surety. The principle of Frantz v. Brown, fits the case in hand. Here, there is a contintingent liability for the amount of the note, which the defendant, for aught we know, may be compelled, to pay. It is, therefore, against equity to enforce payment of the note on this, or any other count, except upon equitable terms of indemnity. That the original agreement is satisfied as to Shoemaker, is nothing, unless such circumstances exist, as between Pursel, Ellis and Bodine, as will enable the plaintiff to sustain his count against the present defendant. There is nothing in the other exceptions, which requires a special notice.

Judgment reversed, and a venire de novo awarded.