Vandiver v. Pollak

• Decision Date: 26 January 1893
• Citation: 97 Ala. 467,12 So. 473
• Parties: VANDIVER ET AL. v. POLLAK.
• Court: Alabama Supreme Court

12 So. 473

97 Ala. 467

VANDIVER ET AL. v. POLLAK.

Supreme Court of Alabama

January 26, 1893

Appeal from chancery court, Montgomery county; John A. Foster Chancellor.

Bill by I. Pollak against W. F. Vandiver & Co. for contribution. Defendants demurred to the bill, and moved to dismiss the same for want of equity, and from a decree overruling the motion and demurrer they appeal. Affirmed.

Tompkins & Troy, for appellants.

Roquemore White & Dent, for appellee, as to the right of contribution between wrongdoers, cited: Moore v. Appleton, 26 Ala. 633; Cooley v. Torts, 145-147; Adamson v Jarvis, 4 Bing. 66; Betts v. Gibbins, 2 Adol. & E (N. S.) 57; Humphrys v. Pratt, 2 Dow & C. 288; Avery v. Halsey, 14 Pick. 174; Jacobs v. Pollard, 10 Cush. 287; Goldsborough v. Darst, 9 Ill.App. 205; Gray v. Gaslight Co., 114 Mass. 149; Armstrong Co. v. Clarion Co., 66 Pa. St. 219; Acheson v. Miller, 2 Ohio St. 203; Bailey v. Bussing, 28 Conn. 455; Sherner v. Spear, 92 N.C. 148; Horbach's Adm'rs v. Elder, 18 Pa. St. 33; 4 Amer. & Eng. Enc. Law, p. 12, § 6, tit. "Contribution;" 1 Bish. Cont. § 216, and note 1, p. 81; Story, Partn. § 220; 6 Alb. Law J. 23.

HEAD J.

It must be received as the general rule that no right of contribution exists between joint tort feasors. See 4 Amer. & Eng. Enc. Law, 12, and the authorities there collected. The courts, however, have declared numerous exceptions to it; to such extent, indeed, as that the judge delivering the opinion of the court in Goldsborough v. Darst, 9 Ill.App. 205, saw fit to say that there are so many exceptions to the rule that it has ceased to be a general one. The appellee insists that the case made by this bill ought to be declared an exception; and that is the question for our decision.

The appellants, Vandiver & Co., and appellee, Pollak, sued out severally attachments against the estate of Harmon Bros., their debtors, to enforce collection of their several debts; and, acting conjointly, caused the sheriff to levy the attachments simultaneously upon a stock of goods which had belonged to Harmon Bros., with which they had been carrying on mercantile business, but which that firm, shortly before the levy, had sold and delivered to John Harmon, their father. Subsequently other creditors of Harmon Bros. sued out attachments which the sheriff levied upon the same goods, in subordination to the levies of appellants and appellee. The goods were all sold by the sheriff, who, in the course of proceedings, paid the proceeds to the different creditors, appellants and appellee receiving payment in full of their respective demands. It is not controverted that if these levies, made by the joint procurement of the appellants and appellee, and at the same time, were wrongful, they became joint trespassers upon the possession of John Harmon. Sparkman v. Swift, 81 Ala. 231, 8 South. Rep. 160. John Harmon, by separate actions in trespass against each, sued the several attaching creditors for the alleged wrongful seizures. The action against Pollak, the appellee, was tried, and resulted in a verdict and judgment against him for the entire value of the goods seized and converted, which judgment he was compelled to pay, and did pay, amounting, with interest and costs, to the sum of $6,100. Pollak's claim against Harmon Bros. amounted to $723.45, and that of Vandiver & Co. to $321.11. After the recovery and satisfaction of the judgment of John Harmon against Pollak, the other actions, in trespass, were dismissed. The goods sold and delivered by Harmon Bros. to John Harmon constituted all the property of the former subject to levy and sale, and they became then, and were thereafter, insolvent. The bill is filed by Pollak to enforce contribution from Vandiver & Co., and the facts relied on as bringing the case within exception to the general rule that there is no contribution between wrongdoers are as follows: When they-the appellants and appellee-became informed of the facts of the sale by Harmon Bros. to their father, John Harmon, they undertook to inquire into the legality and validity of the same, with the view of enforcing the collection of their debts out of the goods conveyed if the sale, upon inquiry, should be found to be void. To this end they employed an attorney, who went to Union Springs, where Harmon Bros. lived and had carried on business, and where the sale was made, and inquired into the facts, and reported to appellants and appellee that from an examination of the facts and circumstances attending the transaction he honestly believed that the sale was void, because the consideration therefor was simulated and fictitious. The bill alleges that this information was imparted to appellants and appellee, and they became fully convinced that the sale was void for fraud, and that the goods were the property of Harmon Bros., and not of John Harmon, and liable to the satisfaction of their claims; and they thereupon procured the issuance of their attachments, and had the sheriff to levy them upon said goods; that in doing so they acted in good faith, under the belief that the goods belonged to Harmon Bros. and not to John Harmon, and that they were engaged in a lawful act in undertaking to subject the same to the payment of their debts; that they had no unlawful intention to violate the rights of John Harmon, nor did they act in willful disregard of his rights in the premises, but acted only in good faith under the belief that John Harmon's claim to the goods was actually fraudulent. As the question here presented has not heretofore been raised or adjudicated in this court, we will notice some of the decisions in other jurisdictions.

In Adamson v. Jarvis, 4 Bing. 66, defendant, having property in his possession, represented to plaintiff, an auctioneer, that he had authority to dispose of such property, and requested plaintiff to sell it for him. Plaintiff, believing the representation, and not knowing the property was not defendant's, sold it, in pursuance of the request, and accounted to defendant for the proceeds. For this he was sued by the true owner, held liable, and compelled to pay damages. He sued for indemnity. Held entitled to recover. Here, it will be observed, upon well-settled principles of law, plaintiff and defendant were liable to the owner as joint wrongdoers; yet the court said, referring to the case of Merryweather v. Nixan, 8 Term R. 186, which decided that one wrongdoer could not sue another for contribution, that the decision would not affect cases of indemnity where one man employed another to do acts, not unlawful in themselves, for the purpose of asserting a right. "Every man," said the court, "who employs another to do an act which the employer appears to have a right to authorize him to do, undertakes to indemnify him for all such acts as would be lawful if the employer had the authority he pretends to have. A contrary doctrine would create great alarm." And the learned judge declares that "from reason, justice, and sound policy the rule that wrongdoers cannot have redress or contribution against each other is confined to cases where the person seeking redress must be presumed to have known that he was doing an unlawful act."

In Betts v. Gibbins, 2 Adol. & E. (N. S.) 57, the principle applied is about the same as in Adamson v. Jarvis supra. The defendant, a manufacturing chemist at Neath, sold goods to Nyren & Wilson in London on the latter's order, and sent the cargo from Neath to Bristol, to be from thence forwarded by the plaintiffs' boats to London, there to await defendant's orders, plaintiffs being barge masters and wharfingers at Bristol and London. Defendant wrote plaintiffs that the goods in controversy should be for Nyren & Wilson, and instructed them to separate these goods from others shipped at same time, and intended for other parties, and have them taken away distinct from any others. Nyren & Wilson, after arrival of the goods in London, applied for and received from plaintiffs two of the ten casks constituting the consignment. Later, while the remaining eight casks were still in plaintiffs' possession, Nyren & Wilson having failed to accept or pay defendant's draft on them for the price, defendant gave directions to plaintiffs not to deliver the remaining casks to Nyren & Wilson, but to deliver them to the order of one John Elliot, which he did. At the suit of assignees of Nyren & Wilson, plaintiffs were forced to pay for the goods, and sued defendant for indemnity. Held, entitled to recover. It was argued that, plaintiffs and defendant being joint wrongdoers in withholding the goods from Nyren & Wilson, neither contribution could be claimed, nor promise of indemnity implied, among them. The court said that an agreement to indemnify was implied. "I do not see," said the judge, "the distinction between 'contribution' and 'indemnity;' but it appears to me there is nothing to prevent either in this case. It was perfectly competent to the defendant to say, 'I claim the goods; do you keep them for me;' and the plaintiffs were not bound to exercise their judgment on this claim, though they were acquainted with all the facts. If they were acting bona fide, I cannot conceive what rule there can be to hinder the defendant from being liable for the risk." It seems the defendant, in stopping the delivery to Nyren & Wilson, was attempting to enforce a supposed right of stoppage in transitu, but which, under the circumstances, was insupportable. The court further say, in this case, that the case of "Fletcher v. Harcot, Hut. 55, shows that there may be an indemnity between wrongdoers unless it appears that they have been jointly concerned in doing what the party complaining knew to be illegal. The act there done was a very strong one, yet, though it turned out to be...