Kennedy v. Carpenter

• Decision Date: 18 February 1837
• Citation: 2 Whart. 344
• Parties: KENNEDY v. CARPENTER and Others.
• Court: Pennsylvania Supreme Court

2 Whart. 344

KENNEDY v. CARPENTER and Others.

Supreme Court of Pennsylvania.

February 18, 1837

IN ERROR.

1.The payee and endorser of a promissory note, who endorsed it for the accommodation of the maker, and without any consideration between them, and who afterwards was compelled to pay the amount to the holder, cannot recover from the maker on any of the money counts in indebitatus assumpsit, but must sue on the note: And if more than six years have elapsed between the time at which the note fell due and the commencement o?? the action, he cannot recover, although he may have paid the amount to the holder within six years.

2.If one of two joint payees and endorsers of a note, discounted for the accommodation of the maker, die before the note falls due, his representatives are not liable to the holder for any part of the amount.

3.Where a note was made by the defendant in favour of A. and B., and jointly endorsed by them for the accommodation of the defendant, and the proceeds of the note, which was discounted by a bank, went to the credit of the defendant; and A. died before the note became due, and his administrators paid one-half of the amount to the bank, B. paying the other half it was held, that the administrators could not recover the amount so paid by them; the payment having been voluntary, and in their own wrong.

THIS was a writ of error to the District Court for the City and County of Philadelphia, to remove the record of an action of assumpsit brought in that court to June Term, 1832, by Ann Carpenter, John Smith and George Knorr, administrators of the goods, & c. of Conrad Carpenter, deceased, against Robert Kennedy.

The declaration contained five counts: The first was on a promissory note made by the defendant, dated the 6th of June 1823, for $3500, payable to Conrad Carpenter and William Overington, at ninety days, at the Bank of Germantown, and endorsed, (as alleged,) by Overington to Carpenter; laying a promise to the testator.The 2d count was for money had and received, (viz. $5000,) on the 8th of September, 1823, by the defendant, to the use of the intestate; and promise to the intestate.The 3d count was for the same sum, had and received on the 14th of February, 1828, by the defendant, to the use of the plaintiffs; and promise to them.The 4th count was for the same sum lent and advanced, & c. on the 14th of February, 1828, by the plaintiffs, to the use of the defendant; and promise to the plaintiffs.The 5th count was for the same sum lent and advanced, & c. on the 8th of September, 1823, by the intestate, to the use of the defendant; and promise to the intestate.

The defendant pleaded non assumpsit and payment with leave, & c.; non assumpsit infra sex annos; actio non accrevit infra sex annos; and set-off; and issues being joined on these pleas, the case came on for trial on the 7th of October, 1835, before Judge JONES; when the plaintiff having proved the handwriting of the defendant to the note gave it in evidence, as follows:

" $3500 Philadelphia, June 6th, 1823

Ninety days after date, I promise to pay to Conrad Carpenter and William Overington, or order, at the Bank of Germantown thirty-five hundred dollars, without defalcation, for value received.

ROBERT KENNEDY.

Credit the drawer,

CONRAD CARPENTER."

Endorsed,

WILLIAM OVERINGTON,

CONRAD CARPENTER.

The plaintiff then proved that the note was drawn and endorsed for the accommodation of Kennedy, and discounted at the Bank of Germantown.It was several times renewed; the last renewal being on the 6th of June, 1823, for ninety days.The note became due on the 4th of September.Carpenter the intestate died on the 24th of August, 1823; consequently before the note fell due.It remained in the hands of the bank unpaid until February, 1828.On the 13th of that month, Knorr, one of the plaintiffs, paid one-half of the amount due upon it, and on the 18th, Overington paid the other half.The receipt given by the cashier of the bank to Knorr was as follows:--" Received of George Knorr, acting administrator to the estate of Conrad Carpenter, deceased, $2212 16, in full of one-half of the principal and interest on a note of Robert Kennedy for $3500, endorsed by Conrad Carpenter and William Overington, and discounted in the Germantown Bank, and regularly protested on the 7th of September, 1828, which the said Robert Kennedy has failed to pay, and which is in full against the estate of Conrad Carpenter, deceased, as a surety."

The learned Judge, after stating the evidence to the jury, expressed himself in substance as follows:--

" This action was commenced the 23rd of May, 1832.One of the points made in this case depends upon the act of limitations.In deciding this point, it is important to keep in view the character of the transaction between these parties.The note was for the accommodation of the drawer, as it appears by the evidence.The endorsers were in effect sureties; and as between them and the drawer, they have the rights of other sureties.They might, it is true, have paid the note as soon as it became due, but as between the parties, it was the duty of the drawer to have paid it.And it was the breach of this duty on his part, that continued the liability of the endorsers after the time of payment had elapsed.This action is founded on an implied promise, on the part of the drawer, to pay his endorsers what they should be ultimately obliged to pay for him; and the action is maintainable on this ground.The endorsers could not sue the defendant for not paying the note, as he was bound to do, without having first paid it themselves.Their cause of action therefore against him did not accrue until they paid the note, which was not till February 1828.If the jury believe the evidence, then this is within six years of suit brought.Another point raised by the defendant, relates to the form of the action.It is said that Mr. Knorr alone could bring this suit, and that he must sue in his personal, not representative character.I think that under the circumstances in evidence, the action may be maintained by the plaintiffs in their representative character.It would be impossible for the plaintiffs to show the ground or reason of this payment by them to the Germantown Bank, without showing the contract of their intestate.It is not like the case of the sale of goods which came to the hands of an administrator, where possession by him is evidence enough of his title to sell them and recover the price.Connected with this point is another position, viz: that the plaintiffs must, if they can sue at all, sue on the note.I think otherwise; the action may be brought upon the implied promise by the defendant to re-pay so much money as Carpenter or his estate should be obliged to pay.It is also contended that no action can be brought by the plaintiffs jointly, unless the payment for which they seek to recover was made out of a joint fund.This proposition is involved in the answer to the preceding.The fund from which the note was paid is not a material inquiry in this case.The receipt taken by Mr. Knorr from the Germantown Bank (if believed), shows the character in which he claimed to act; and there is evidence to the same effect.He went to the bank, and in the character of administrator discharged a liability of his intestate.He had a right to say that he would act in that character and not personally.A party paying money, has the right not only to direct the application of it, but also to say in what character he pays it.His paying it in the character of administrator, repudiates the idea that he was the purchaser of the note for his own purposes.It is also contended in this case, that there is no evidence of the payment of money.It is said that to maintain an action for money paid, laid out and expended, there must be proof of the payment of money; and payment by a check upon a fund deposited in bank is not sufficient.I am of opinion that a payment by a check upon a bank is evidence of a payment in money, to sustain an action for money paid.These remarks embrace all matters of law which have been discussed."

The jury found for the plaintiffs, and the defendant took a writ of error, and assigned several errors in respect to the admission of testimony on the trial; which as they were only slightly pressed on the argument, and were not noticed in the opinion of the court, are omitted.The errors relied upon were principally in the charge of the court.

Mr. Kennedy and Mr. Rawle for the plaintiff in error, cited 1 Chitty's Plead.234;5 East, 150;2 Bos. & Pul. 424;4 Har. & Johns.530;13 Serg. & Rawle, 442;3 Bos. & Pul. 10;4 Yeates, 105;2 Rawle, 191;5 Rawle, 137;1 Penn. Rep. 161;2 Penn. Rep. 490;3 Rawle, 370;10 Serg. & Rawle, 234;16 Serg. & Rawle, 242;13 Serg. & Rawle, 443;1 Penn. Rep. 137;Chitty on Bills, 571;2 Penn. Rep. 25;3 Rawle, 388;1 Watts, 408;2 Bay, 324;16 Mass. 314;2 Term Rep. 105;7 Term Rep. 568;7 Serg. & Rawle, 126;3 Penn. Rep. 380;12 Serg. & Rawle, 262;5 Binn. 573;Chitty on Contracts, 179;2 Rawle, 311;6 Serg. & Rawle, 262;10 Serg. & Rawle, 313; 2 Tidd's Practice, 802; 2 Williams's Saunders, 117, note, c. d;8 Serg. & Rawle, 402.

Mr. Miles, contra, cited 4 Term. Rep. 277;3 Term Rep. 659;3 East, 104;10 Serg. & Rawle, 234;1 Penn. Rep. 161;2 Rawle, 102; 1 Chitty's Plead.207;2 Bos. & Pul. 424;2 Lev. 110;2 Vin. Abr. 47, pl. b.; Com. Dig. Action, G.;3 Serg. & Rawle, 413;8 Serg. & Rawle, 265;2 Rawle, 212;1 Watts, 344;17 Serg. & Rawle, 116, 250;16 Serg. & Rawle, 350;5 Rawle, 124;2 Rawle, 280;3 Starkie'sEvid. 1385;3 Bos. & Pul. 235; 2 Harris & Gill, 305.

OPINION

KENNEDY J.

Out of the numerous errors assigned, two principal objections seem...