Vandiver v. Pollak

• Decision Date: 30 July 1895
• Citation: 19 So. 180,107 Ala. 547
• Parties: VANDIVER ET AL. v. POLLAK.
• Court: Alabama Supreme Court

19 So. 180

107 Ala. 547

VANDIVER ET AL. v. POLLAK.

Supreme Court of Alabama

July 30, 1895

Appeal from chancery court, Montgomery county; Jere N. Williams Chancellor.

Bill by Ignatius Pollak against W. F. Vandiver & Co. for contribution. From a decree granting the relief prayed respondents appeal. Affirmed on rehearing.

Tompkins & Troy, for appellants.

Roquemore & White, for appellee.

BRICKELL C.J.

The theory on which the bill is filed is that, the appellants and appellee bearing the relation and subject to the liabilities of joint trespassers, the appellee, having been compelled to the satisfaction of all the damages resulting from the trespass, is entitled to demand contribution from the appellants.

The first question we propose to consider is whether that is the relation in which the parties stand. The material facts touching this question, as we collect them from the record looking only to the evidence which is free from conflict, and to the admissibility of which there is no cause of just exception, are that the parties respectively were creditors of the partnership of Harmon Bros., who, ceasing to do business, made a sale to their father of all their property and assets. On inquiry by the common attorney of the parties into the facts and circumstances attending the sale, they were advised that it was fraudulent as to creditors affording legal cause for the issue of attachments, to enforce payment of their debts. Acting on this advice, the parties sued out attachments, and separately indemnified the sheriff to levy upon and make sale of a stock of merchandise, the only visible, tangible property, the subject of the sale to the father. The attachments were issued on the same day, and under the levies there was a sale, from the proceeds of which the parties received satisfaction of their demands. The father, the purchaser of the merchandise from the debtors, instituted several actions against the sheriff and his indemnitors to recover damages for the taking and sale of the merchandise, which, as to the sheriff, abated, we suppose, because of his death pending the suits. The suit against the appellee and the surety on the indemnifying bond he had given the sheriff resulted in a judgment against them for the sum of $5,534.74 damages, and the further sum of $268.70 costs. An appeal was taken to this court, and there was an affirmance of the judgment. ^[1] The judgment was satisfied by the appellee, but it is not clearly shown the precise amount paid in satisfaction; and after its satisfaction the suit against the appellants was dismissed at their costs. The wrong which formed the gravamen of the action against the sheriff and his indemnitors consisted in the taking of the merchandise and its sale under the attachments. The wrong was the physical act of the sheriff, a continuing trespass, having its incipiency in the seizure of the merchandise, and terminating in the sale. There was but one trespass, but one seizure and sale of the merchandise, from which accrued to the true owner a single, indivisible cause of action.

O'Neal v. Brown, 21 Ala. 482.

This single cause of action, though entitled to but one compensation or satisfaction, he had the election to pursue jointly or severally against all who aided in or who advised or procured or accepted benefits resulting from the trespass. If it is conceded that there was no concert between the appellants and the appellee in the issue and levy of the attachment; that each was pursuing a legal remedy, separately and independently of the other; yet in the single trespass which was committed, and which was the immediate act of the sheriff, their common agent, each participated to the same extent, and each accepted benefits resulting from the trespass. In Sparkman v. Swift, 81 Ala. 233, 8 So. 160, it is said: "If several creditors sue out at different times separate writs of attachment against a common debtor, and cause them to be simultaneously levied by the same officer, they will be regarded, the levy being wrongful, as joint wrongdoers, though they may have acted separately, without concert, and each was endeavoring to secure a priority of lien. The wrong in such case consists in the levy and seizure of the property, which was done by the same officer, at the same time, for each and all of the attaching creditors. They contemporaneously committed the wrong by a common agent." The case of Stone v. Dickinson, 5 Allen, 29, 81 Am. Dec. 727, was referred to approvingly, in which, on reasoning that seems conclusive, it was held that, where different creditors, acting separately and without concert, caused a common debtor to be arrested at the same time, by the same officer, on their several writs, they were joint trespassers, the arrest being unlawful, and they were jointly liable. It was said by the court, as may now be said properly, "It was the common case of a wrongful and unlawful act, committed by a common agent, acting for several and distinct principals." Though there were separate suits against the appellee and the appellants, as we have said, there was but one tort, for which the party aggrieved was entitled to but one satisfaction or compensation. It is merely elementary to say that there can be against the same person but one recovery for the same cause of action. O'Neal v. Brown, supra. And so there can be, for the same cause of action, but one satisfaction obtained from several persons for a single injury, in itself and of itself an indivisible cause of action. The acceptance by the true owner of the merchandise of the satisfaction of the judgment against the appellee extinguished the single cause of action on which the judgment was founded, and on which the suit against the appellee was founded, forming a bar to the further prosecution of that suit, except as to the costs. 2 Freem. Judgm. § 467; Blann v. Crocheron, 19 Ala. 647, 20 Ala. 320; Smith v. Gayle, 58 Ala. 600; Du Bose v. Marx, 52 Ala. 506. Whether the satisfaction was by the appellants pleaded in bar of the further prosecution of the suit is not shown, nor is it material. The judgment rendered is the equivalent of that which must have been rendered if such plea had been interposed, and from it all the benefit inured to the appellants which would have resulted from a formal plea and judgment thereon rendered.

The next question is, are the appellants bound to contribute to reimburse the appellee for the moneys expended in the satisfaction of the judgment? The cause was before the court at a former term on an appeal from a decree of the court of chancery overruling demurrers directed to the equity of the bill. After elaborate argument it was then decided that, as it was apparent from the allegations of the bill the parties were jointly and severally liable for the taking and sale of the merchandise, and the taking and sale was not an intentional, meditated wrong, the appellee having been compelled to the satisfaction of the resulting damages, the appellants were under the duty of contributing to his reimbursement. Vandiver v. Pollak, 97 Ala. 467, 12 So. 473. The doctrine of contribution is not founded on contract, but on the principle that equality of burden as to a common right is equity; that wherever there is a common right the burden is also common. In Campbell v. Mesier, 4 Johns. Ch. 338, it was described or defined by Chancellor Kent: "The doctrine rests on the principle that where the parties stand in equali jure the law requires equality, which is equity; and one of them shall not be obliged to bear the burden for the ease of the rest." The cases are numerous, the subject-matter and the relations of the parties varied, in which the doctrine has been applied. They are founded upon and illustrative of the maxim, "Qui sentit commodum sentire debet et onus,"-"he who derives the advantage ought to bear the burden." Broom, Leg. Max. 706. There was some common obligation or duty or liability which ought to be apportioned, or which, resting upon the one party primarily, ought to be borne by him to the exclusion of the others, which had fallen upon the one party solely or in undue proportion. For the taking and sale of the merchandise the parties participating-and all in legal contemplation participated who may have given physical aid, or advised or procured the acts to be done, or may have subsequently assented to and received benefit from them-incurred a joint and common liability. The party wronged had the election to sue them jointly or severally, but the election wrought no change in the nature of the acts or in the relation of the wrongdoers. The equity of the demand of the appellee for contribution appeals to the sense of justice. Upon him has fallen the entire burden of a joint liability, which in good conscience ought to have fallen upon him and the appellants in common; and unless

it can be said he does not come into court with clean hands, he is entitled to relief. The insistence is that he does not come into court with clean hands; that he is a tort feasor, as were the appellants tort feasors in their participation in the taking and sale of the merchandise; and as between them, the court will not intervene for the relief of the one or the other. As a general principle of the common law it is often stated that indemnity or contribution will not be enforced as between joint wrongdoers. The reason underlying the principle is that courts will not lend assistance to him who founds his cause of action on an immoral or illegal act,-"Ex turpi causa, oritur non actio." A trespasser, confessing that he has injured or taken the property of another, is not entitled to the assistance of courts, instituted as well for the protection of property as for the protection of persons, to recover indemnity or...