Taylor v. Cotten, 28 N.C. 69, 6 Ired. 69 (1845)

Dec. 1845 · Supreme Court of North Carolina

28 N.C. 69, 6 Ired. 69

WILLIAM P. TAYLOR vs. STEPHEN W. COTTEN.

In every declaration for money paid for the use of another, it must "be laid to have been paid at his request; but this request may .be express or implied, and it is always implied in law, where the payment is subsequently recognized by the person for whom it is made.

Appeal from the Superior Court of J^aw of Chatham County, at the Fall Term, 1845, his Honor Judge Dick presiding.

The plaintiff declared in assumpsit upon a special contract ; in addition to which, the declaration contained the usual money counts. The case was as follows. A constable, of the name of Cook, had in his hands two executions against the defendant, Cotten, to the amount of $ in favor of one Curl. At the same time, the plaintiff, who is the Sheriff of Chatham County, had in his hands, for collection, claims in favor of one Burnett, to an amount exceeding the executions against Cotten, who had obtained from Burnett an order upon the plaintiff.for §300, payable out of such claims. This order had been presented to the plaintiff, and accepted by him. - Cotten, and Cook, the constable, went to Taylor, and it was agreed between the three, that as soon as Taylor collected all Burnett’s money, he would take up the judgments against the defendant, who would thereupon give him credit upon the order, and indemnify him against all damage he might sustain in consequence thereof. Cook gave up the Curl judgment to the plaintiff, but never received from him any money therefor. The latter, as Sheriff, had in his hands two executions against the constable, Cook, and his two sureties, one of whom was Benjamin-Curl, the plaintiff in the executions against Cotten, and to a larger amount than they called for ; and it was agreed between Taylor and Cook, that the money to be collected for the defendant, should be applied to the executions against Cook, which was accordingly done. Curl brought an action' of Trover against Taylor, the plaintiff, to recover the value of his two executions, and recovered a judgment for $281, which was paid, and to recover which, this action was brought. During the pendency of this suit against Taylor, the defendant declared, that, if he had got Taylor into the difficulty, he would save him harmless, and that he had always intended so to do. His Honor, who tried the cause, instructed the jury, “ that if they should believe that the plaintiff agreed to satisfy the said judgments, {that is the judgments against the defendant in the hands of Cook,) with the funds of the defendant in his hands, and that such were the instructions of the defendant, when he proposed to him to take them up, and he would give him credit on the order; and if they should believe the plaintiff did not perform this .agreement, but departed from such instructions, that the defendant would not be liable for any loss the plaintiff should sustain. But if they should, from the evidence, believe that the plaintiff sustained loss, while acting as agent of the defendant, and according to his instructions, that then he would be entitled to recover.” The Counsel for the plaintiff requested the Court to charge the jury. that there was no evidence vrfiatever of any instructions from the defendant to the plaintiff, as to the particular way in which he should act in the matter “ as1 bis agent.” To which his Honor replied, “'that he bad not told the jury that there were any instructions,” but declined giving the particular instructions' prayed for. The Counsel for the plaintiff then asked the Court to charge the jury, “ that if, from the evidence, they believed that the defendant knew how the plaintiff had applied the money for the judgments taken up, that his subsequent ac-knowledgements and his promise of indemnity, after such knowledge, amounted to acquiescence in, and ratification of, the acts' of the plaintiff as his agent; and in that point of view, the defendant would be liable.” This instruction the Court also declined to give, but charged, “ that if the plaintiff had taken up the judgments, before a request by the defendant, and that, afterwards, the defendant had promised to indemnify him for having done so, that such promise would not be binding upon the defendant, as it would be without a consideration, and therefore void; that when one man did an act for another, to make that other liable, there must have been a request previous to the act.”

The jury rendered a verdict for the defendant, and the plaintiff appealed from the judgment thereon.

Wo Counsel for the plaintiff.

Manly and McRae, for the defendant.

Wash, J.

We see no error in the first part of his Honor’s charge. He certainly did not instruct the jury, that the plaintiff was acting under any specific inai ructions from the defendant. The agreement between the parties was, that the plaintiff, out of the money i his hands, or shortly to be, should take up the two execi >ns against the defendant, and which were then in the os-session of Cook, the constable — that is, should pay 3m off. If he had done so — had paid their amount to the constable — the defendant, Cotten, would have been discharged from all further liability upon them, and the plaintiff, Curl, could not have recovered their value from him. Instead of so doing, he discounts them with Cook, thereby leaving them still in full force against the defendant, and the title to them still in Curl; but he subsequently did pay them, and would have been entitled to a credit on his acceptance — and we cannot conceive why it was not stated in the case, whether or not he had paid it, as upon this ground the whole merits of the plaintiff’s claim turned; and it was the duty of the plaintiff to have drawn up his exceptions, so that this Court could sec whether there was any error committed by the presiding Judge, to his injury. As the case is stated, we cannot say whether there is error in the charge or not. We differ from his Honor upon the second branch of his charge. lie instructed the jury, “ that when one man docs an act for another, to make that other liable, there must have been a request previous to the act.” In this opinion there is manifest error; and we should, without hesitation, grant a new trial, if, from the case as it is before us, wc could see that any injury had been sustained by the plaintiff in consequence of it. In every declaration for money paid for the use of another, it must, it is true, be laid to have been paid at his request; but this request may be express or implied, and it is always implied in law, where the payment is subsequently recognized by the person for whom it is made. The promise to pay, made after, is sustained by a sufficient consideration. Com. on Cont. 591, 2. We cannot, however, see . in what way this error has acted to the injury of the plaintiff. The case declared on and proved, was one of express previous request, and the opinion had no application to it. The defendant’s engagement was, if the plaintiff would pay off the Curl judgments, not that he would repay him the money, but that he would credit him on his accepted order. What has become of the order, the case does not disclose. We are not informed whether the plaintiff ever collected the Burnett money, though it may well be presumed that he has done so, and that before this action -was brought, as he said, at the time the agreement was entered into, “ that he had not collected all the money, but would in a day or two.” If the money was collected by him, then most clearly he cannot maintain this action, because, to tlie amount of the Curl executions, it is his money. If he has not collected it, the fact should have been shown. In that case, the subsequent declarations of the defendant would have supported his count for money paid to his use.

This is not a case of agency, but simply an agreement between the parties, that the plaintiff should, of the funds of the defendant, pay off the executions in the hands of the Constable, Cook, and he would credit him on his acceptance. The case is so obscurely made out, that we cannot say we fully understand it.

Per Curiam. Judgment affirmed.