Joshua Webster Junior et al. versus Otis G. Randall et al. and Trustee, 19 Pick. 13

Shaw C. J. delivered the opinion of the Couit. The first question presented in this case is, whether under a count for money had and received the plaintiff can give in evidence a promissory note, which he had not in mind at the time when he commenced his action ; and the defendants contend that he cannot. This question, we think, depends upon the correct application of the maxim, that in declarations and all other pleadings, the allegata and the probata must correspond, and it is true that a party cannot sue upon one cause of action, and recover upon another.

But what are the allegations and what is the cause of action, which the plaintiffs set forth ? They allege that the defendants are indebted to them, in the sum of $ 10,000 for money had and received, and this is the legal cause of action. This, according to the rules of law, may be proved by various kinds of evidence, as, an accountable rece'pt. a promissory note, or paroi evidence of a loan.

The piamnti mat support his declaration by any of these species of evidence., proving the existence of such legal cause of action, at the time the suit is commenced ; and since it has been held that a promissory note is good legal evidence of money had and received to the plaintiff’s use, he may of course give in evidence any such note, which he then held.

And although the plaintiff had particularly in his mind one species of evidence when he commenced his suit, yet if he fails in that or otherwise, if he has other evidence which verifies his allegation and proves the existence of his cause of action, his proofs conform to his allegations and warrant him in demanding a verdtci We think it impossible to distinguish this case, in principle, from the one decided in this Court in 1835, Hodges v. Holland, 16 Pick. 395.

But it is contended, that though this might be the result in ordinary cases, yet here the suit was commenced by an agreement and understanding between the plaintiffs and defendants, ihat it should be sustained only on the two fictitious notes simultaneously made, and that to give in evidence this promissory note, is in violation of the plaintiff’s agreement, and of good faith.

It is extremely probable that some of the original purposes of some of the parties, may be disappointed, but if it be so, it will be attributable to the hasty and careless manner in which the business was, transacted, and because some of the purposes were such that they could not be carried into effect consistently with the rules and principles of law. But it does not appear, that there was any agreement to sue or rely upon those notes only ; if it had been so, the course would had been plain, to declare upon those notes specifically and then if the notes should fail the suits would fail.

But by bringing actions for money had and received, and this being done with the knowledge of the defendants, their assent is to be presumed ; and it cannot be presumed to have been done in ignorance of the law, because it was done under the advice ot counsel. The agreement to pay over a portion of the amount recovered, related not to the proceeds of those notes, but to the proceeds of the suits, upon whatever grounds the plaintiffs might recover.

But another and perhaps the most important ground of objection is, that by an agreement entered into, at the time the suit was brought, it was in effect stipulated that it was brought for the benefit of the defendants themselves, that the amount, when recovered, is to be paid over to them or to such creditors as they shall direct, that therefore the defendants have a right to direct and control the conduct and prosecution of the suit, to waive the benefit and to require the plaintiffs to proceed no further, and that this they do, by objecting to the evidence and defending the suit.

If this ground of defence were sustained by the evidence, it would be entitled to great consideration. The law abhors circuity of action, and various expedients are resorted to in order to prevent it; among which estoppels and rebutters are prominent. So an executory contract not to sue generally, or a contract of indemnity, will be taken to operate by way of release, to prevent circuity of action. So where an indorser of a negotiable note, after various mesne indorsements, again becomes indorsee.

He can sue no indorser, subsequent to his first indorsement, though any other indorsee might, because whatever be should recover of such mesne indorser, as subsequent indorsee, he would be liable to reimburse as prior indorser, and therefore to avoid circuity of action, it shall operate as a defence to the first suit. But the agreement in the present case, does not support the ground so taken, nor bring the case within the operation of the principle relied on. To effect that object, the liability to reimburse, or to indemnify, must be coextensive with the claim, which it is offered to defeat.

But in looking at this agreement, it appears to be an obligation by the plaintiffs to the defendants, given at the time of commencing this suit, promising to pay to the defendants, or such creditors as they should designate, whatever sum should be recovered of the trustee, on suits that day commenced. But the summoning of the trustee is only one of the modes of securing, in whole or in part, the sums which may be recovered in the suit; non constat that any thing will ever be recovered of the trustee, or that other modes of satisfying the judgment may not be discovered.

In all other respects then, than as to the funds in the hands of the trustee, it does not appear that the suit is brought for the benefit, or is to be under the control of the defendants, and therefore the liability of the plaintiffs to repay, is not coextensive with the claim which they are seeking to enforce and recover. That special liability in a particular event therefore, cannot operate as a defence to the plaintiffs’ suit. Judgment on the verdict.

Mellen, the supposed trustee, admits in his answers, that at the time of the service of the writ upon him he had effects of the defendants in his hands, but he states that the plaintiffs’ agreement and the defendants’ notice to them before recited, have been presented to him, and that agreeably to them he has appropriated and paid over a large portion of the funds which were in his hands, and since the funds have been already appropriated as he believes the parties intended, he asks to be discharged.

He also states, that since the commencement of this suit, he has been served with another trustee process, sued out by one Barker against the defendants, and the respondent as their trustee. And further, that the demands of the several creditors of the defendants, which the defendants pointed out to the plaintiffs to be paid out of any funds in the trustee’s hands, have since been transferred to Joshua Mellen, a bond fide purchaser for a valuable consideration, and, as the respondent believes, upon the expectation that such purchaser should receive whatever funds should be in the hands of the respondent.

He also makes a part of his answer, the affidavits of Wade and Fitch, by which it is stated that the action was commenced upon a different promissory note from the one for $21I9-26, on which the verdict was rendered, and that a few days after the commencement of this suit the plaintiffs sued out a writ declaring upon this note for $2119*26, on which writ the plaintiffs caused the defendants to be arrested ; and that the plaintiffs entered the same suit in court, where it remained about a year, and afterwards discontinued it. The questions arising on the trustee’s answers, were argued in writing. Shaw C. J.

The trustee admits, that at time of the service of the writ, he had funds of the defendants in his hands, liable to the attachment, and he is therefore to be charged, unless he can show sufficient cause why he should be discharged. We do not now inquire into the amount, nor is it material so to do. The argument proceeds on the ground that he had something, and whether less or more, is to be inquired into hereafter, should the question ever arise.

The plaintiffs having recovered a judgment against the principal defendants, the only question remaining is, whether execution therefor shall be awarded against their goods and effects, in the hands of the trustee. And the Court are of opinion, that there is nothing shown in the trustee’s answers, why he should not be charged. The trustee relies mainly on the agreement entered into by the plaintiffs with the defendants, at the commencement of the suit, providing how the funds to be recovered from this same trustee should be applied when recovered.

To give the fullest effect to this agreement, it is an executory contract, which does no operate till the funds are recovered from the trustee. It presupposes that the funds are first to be obtained. But it is contended that this is necessary to avoid circuity of action. This question was somewhat considered in the former opinion in this case, on the hearing between the principal parties. To give effect to this principle, it must appear that the money when recovered is to be paid directly back to the same party. That is not the case here.

The money when recovered of the trustee, is not to be repaid to the trustee. But it is said that the trustee has paid it to those to whom the plaintiffs by their agreement would be bound to pay it when recovered. But if he has done so, it is merely a payment in his own wrong. No one has a right to pay the debt of another without an authority in fact or in law, and then set up that payment in defence to a legal claim.

The plaintiffs may have claims and set-offs against those to whom, by appointment, the money would, upon the trustee’s hypothesis, be coming when collected, which gives the plaintiffs an interest to recover the money. If, as they contend, their obligation is an alternative one, to pay the defendants themselves or their creditors, they may have still larger claims of set-off The plaintiffs could in no sense be deemed naked trustees for those creditors ; but if they could, they have a right, for the reason already stated, to have the possession of the funds.

The fact, that Joshua Mellen has become the purchaser of the debts of the several creditors, can make no difference; he can have no greater rights than those of whom he purchased, and his interest, whatever it is, has accrued since the attach ment. The circumstance that the plaintiffs commenced a subsequent suit for the same cause of action and arrested the defendants, cannot effect this, a prior attachment. It might be very true, that that suit might have been abated by the pendency of the former ; but the latter could not have the effect of abating the former. Trustee charged on his answer. See Adams Bank v.

Anthony, 18 Pick. 238.