Daniel Love, Appellant, vs. James Gibson, Appellee, 2 Fla. 598

Hawkins, Justice, delivered the opinion of the Court: This was an action of assumpsit, brought by Gibson against Love, for contribution of his portion of the amount paid by him (Gibson) upon a judgment recovered in favor of Colson and others, upon an executor’s bond. The fact of payment is shown upon the record, and is not contradicted. It is not the intention of the Court to take up seriatim all the errors assigned by appellant, but it will, in a general discussion, express its views and opinions to such extent as may be requisite to a decision of the case.

That the form of the action brought (count for money paid) is proper, there can be no doubt, and it is needless to cite authorities, but we refer to 1 Stephens, N. P., 324. 2 Greenleaf Ev., 93. 6 Meeson & Welsby, 168. It is contended that the judgment against Gibson, introduced as evidence in the Court below, was not at all conclusive upon Love, and that he had a right to make thé same defences as if he had been primarily and originally sued.

It certainly is a rule that a verdict or judgment does not bind any person, unless he be a party to the suit, or be in privity with the party, or possess the power of making himself a party. The question here arises, is the judgment against Gibson to be deemed res adju- dicala and conclusive against Love, owing to the facts and circumstances of the case, as shown by evidence, or exhibited by the pleadings.

Where the money sought to be recovered under the count for money paid, has been paid under a judgment against the plaintiff, the record of the judgment is always admissible to prove the fact of the judgment and the amount so recovered. 1 Phillips & A. on Ev., 507. 4 T. R., 589 ; and where the record only seeks'to show as fact that the judgment was rendered, or the verdict given, it can never be considered as res inter alios acia. 1 Greenleaf Ev., sec. 588, p. 576.

It is not, however, to be considered as evidence of ulterior facts embraced in it, or of those facts on which the judgment is founded, unless the party against whom the action is brought had due notice of its pendency, and might have defended it; in which case the record is said to be conclusive as to all the material facts contained in it. 2 Greenleaf, sec. 116. The rule in .relation to notice was laid down by Buller, J., in the case of Duffield v. Scott, et al., 3 T.

R., 374, and has been adopted by able legal writers as a cardinal principle, settling the doctrine upon this matter, vide 1 Smith’s Leading Cases, 139, 2 Greenleaf, sec. 116, and has also received the sanction of decisions of courts of the highest respectability.

Justice Buller remarks : “ The purpose of giving notice is not in order to give a ground of action ; but if a demand be made, which the person indemnifying is bound to pay, and notice be given to him, and he refuse to defend the action, in consequence of which the person to be indemnified is obliged to pay the demand, that is equivalent to a judgment, and estops the other party from saying that the defendant in the first action is not bound to pay the money.” This principle is reiterated verbatim in the case of Smith v. Compton, 3 B. & Ad., 407, and is quoted as decisive authority in Kip v.

Bingham, 6 Johnson R., 158. Swarthout v. Payne, 19 John., 296. 1 Wendell, 20. The same principle is found in 4 Mass. R., 353, and in the case of Clark’s executors v. Covington, 7 Cranch, 308, coupled with the proviso, that if the judgment is fairly and honestly obtained. In Blasdale v. Babcock, 1 John. R., 517, a record having been offered in evidence, it was objected to, because the party defendant had received merely notice of the suit, and not notice also when the cause was actually tried.

It was ruled by the Court that the first notice to defendant was sufficient, and he was bound to know all subsequent proceedings,' without a special notice of the time every subsequent court was to be held. In 13 Johnson, 226, no actual notice of pendency of former action was averred, but that the party was a witness in the former suit; this was deemed by Judge Spencer an averment of a fact tantamount. We have taken some pains to ascertain the true principle upon this subject of notice, for when correctly understood, the task becomes comparatively easy as to its application.

The decisions we have quoted go to the effect to declare, that if notice in this suit has been given to Love, he stands virtually in privity with Gibson, as to the effect of the judgment rendered against Gibson, if that judgment was fairly obtained, and no collusion existed either between Gibson and the parties who recovered the judgment against him, or the principal obligor of the bond.

The defendant in his plea says : “ And although true it is, that af-terwards, to wit, at Spring Term, 1845, of Gadsden Superior Court, a suit was instituted against said plaintiff, as an obligor on said bond or writing obligatory, in the name of John Branch, Governor, &c., for use of John Colson and others, yet the said defendant in fact saith, that no valid breach of the condition of said writing obligatory was assigned in the declaration in said suit, and no legal cause of action therein set forth, and that the said plaintiff was then and there so advised by the said defendant, and was then and there, before the rendition of the judgment in said suit, called upon and required by said defendant to resist the said suit by all legal ways and means, but that the said plaintiff to the contrary thereof failed, and neglected to make legal defences to said action, and permitted the judgment to be rendered therein, and hath since paid the amount thereof, though not legally compelled to pay the same.” Here is a clear admission by the defendant that he knew of the pendency of the suit, and that, too, in time sufficient to have put in pleas to the action.

He says, indeed, that he advised Gibson that there was no valid breach of the condition of the bond assigned in the declaration, and no legal cause of action therein set forth ; but does not this language indicate rather defects in the mode and manner of conducting the suit, than that no suit at all could be sustained ? Why did he not, if he was so well aware himself of the illegality of the bond, say so in totidem verbis to Gibson ? But he speaks in generalities — he uses no definite language — points out no specific error, and gives no clue by which Gibson was to shape his defence.

The first case cited by us, (Duffield v. Scott, S T. R., 374,) was decided directly upon an admission in thé pleadings. After Love had notice of the suit, and, as before remarked, it seems from his plea it was in time to plead, why did he not request to be permitted to join in the defence — unite in shaping the pleadings, and in fine, defend the action, although not a party to the record ?

What is the object of notice in these cases of co-sureties 1 It is to enable parties in interest to do these very things, if they should deem it requisite— and not, after the utterance of some general allegations of error, either to hold aloof altogether, or to stand passively by and await the termination of the suit; and then if, perchance, on being sued for contribution, plead a defence based upon an hypothesis, saying if the party had pleaded such and such pleas, judgment would not have gone against him.

If the surety has notice of the suit, and he does not choose to defend it, he thereby waives all the defences he might otherwise have to the introduction of the instrument to be introduced in evidence, and his right is gone to contest its validity in a collateral way in a suit brought by the co-surety for contribution, for it must be deemed res adjudícala. If there was any thing to show that the judgment was not fairly obtained, the case would present a different aspect. But nothing of the sort appears upon the record.

That the motives of Gibson were honest can scarcely be doubted, when he pays the whole debt, trusting to the contingencies of litigation to recover half only from a co-surety with himself. It is true, he had a mortgage, but this mortgage enured as much to the benefit of Love, after paying his portion, as to Gibson, the principle of substitution applying equally to cases between co-sureties and those between a surety and his principal.—Littledale v. Robinson, 2 Brock. R., 169.

The principle of contribution does not seem to have sprung from contract, but it is based on a principle of justice aud equity, that one person should not be singled out by the creditor to pay the whole demand ; and where this occurs, the law intervenes and places sureties relatively to each other in a state of equality as to the amount paid, and gives the party paying a remedy by action for contribution.

This right of action grows out of an implied agreement, that if one surety shall be compelled to pay the whole, or a disproportionate part of the debt, the other shall pay' such a sum as shall render their common burden equal.

On page 290 of 6th Wendell’s Reports, the Court remark in relation to this subject: “ The action on the money counts are resorted to as substitutes for bills in chancery, and ought to be encouraged, whenever the law affords no other remedy, and where a court of equity would compel the defendant to repay to the plaintiff a sum of money which the latter has been compelled to pay for his benefit.” It is said that there can be no recovery now, because the bond for which the original suit was brought is void, it not having been given in compliance with our statutes.

In accordance with the views we have expressed, that instrument cannot be inquired into in this collateral manner; if there were objections to its illegality, they should’ have been brought forward in the suit against Gibson. It must be recollected that this bond is not sued upon in this case, but is introduced merely as a piece of evidence, showing the original undertaking and the liability of Love as a joint and several obligor.

Nor was it necessary to the conclusiveness of the former judgment, that issue should have been taken upon the precise point, (for instance, the bond,) which was controverted in the present action; it is enough if that point was essential to the finding of the former verdict. 1 Greenleaf’s Ev., 572—citing 2 Saunders, 159, note, (10.) 7 Pick., 341. Peake’s Cases, 219. 4 Dallas, 436.

Besides, the judgments of courts of competent jurisdiction are presumed to be well founded.-' “ Res adjudicate/, pro veritate accipitur.” We feel ourselves supported in the position last taken by the cases-cited by counsel for appellee, from Massachusetts and Alabama. Ford v. Keith, 1 Massachusetts, 139. Carr. v. Burns, 6 Ala., 780. In the first case, it was decided that a surety may recover of his principal, although the money was paid for him upon a usurious contract made by the principal, and which he might have avoided.

In the second, it was held that where one surety has been compelled by' suit to pay the joint engagement, it is not competent for a co-surety, when sued for contribution, to show that the note, as between the' principal debtor and payee, was without consideration. Besides these, there are other cases showing that, although the' original contract was void, or illegal, or could not have been en*forced, if legally defended ; yet, if the money sought to be recovered was paid in good faith, though technical defences were not pleaded, actions of assumpsit could be successfully maintained. See Frith v. Sprague, 14 Mass.

R., 453. Here a party to a bond had paid on account of a breach of it by the principal, and brought as-sumpsit to recover the amount so paid. From the report, of the case, it appeared that the bond was given in Turk’s Island, and from the opinion of the Court, it would seem that its legality was contested during the trial. The Court say — “ But the verdict was right, even if there was no law authorizing the requisition of the bond in this case.

For admitting that requisition to have been wholly arbitrary on the part of the Government of the Island, the surety who stepped in, in aid of the principal, has a right to indemnity, if he has been compelled to pay the penalty, without any fraud or negligence on his part.” See, also, Riley and Wright v. Seymour, 1 Wendell, 143.—Swarthout v. Payne, 19 John. R., 296. It is contended, also, that the payment by Gibson was a voluntary one, and that he was not compelled to pay. The payment of debt by the surety, on the default of the principal, is not deemed a voluntary, but a compulsory payment.

It is the legal liability that raises the presumption of a compulsory payment. Chitty on Contracts, 594. Thus, in 8 Mees. & Wels., 538, where one of two persons who, as sureties for a third, signed, together with the principal, a joint and several promissory note, on the note becoming due paid the amount although no demand was made, or action brought against him by the holder, it was held that such payment could not be deemed voluntary, and that he might sue his surety for contribution. 20 Maine Reports, 324. 3 N. H., 270. 5 Howard U. S. R., 103. Hale v. Smith.

Judgments, too, are presumed to be in invitum. “ In presumptions juris, judicium redditur in invitum.” Coke Litt., 248. A mortgage given by John C. Love, the principal obligor, to Gibson, and dated long posterior to the giving of the bond to indemnify Gibson as to his suretyship, was offered in evidence, but was ruled out by the Court.

What the party intended to show by its introduction, the record does not show — if to prove payments upon it was the object, and this appeared by the record, the Court would have erred in its rejection, for Gibson would have been obliged to deduct any amount paid or reimbursed him, and he could only be entitled to contribution on the balance. Theobald on Pr. & Se., 267. But as it does not appear by the record, that it was introduced to show payment, we cannot say that the Court erred in ruling it out.

Upon a review of the whole case, applying those equitable principles of which we have spoken as being appropriate in this form of action, and being of opinion that the judgment against Gibson must be considered as res adjudícala, we think that Lore is bound in conscience and in law to pay to Gibson the amount which he has advanced for his benefit. The judgment of the Court below is affirmed. Per curiam.