Wharton v. Williamson

• Decision Date: 25 April 1849
• Parties: Wharton <I>versus</I> Williamson.
• Court: Pennsylvania Supreme Court

Page 273

13 Pa. 273

Wharton versus Williamson.

Supreme Court of Pennsylvania.

April 24, 1849.

April 25, 1849.

April 24-5 1849.

ERROR from the District Court of Philadelphia.

G. M. Wharton and Perkins. for plaintiff in error. The defendants having, for a valuable consideration, discharged the maker, could not retain their claim against the indorser; nor could they, as they did, transfer the notes to a stranger. It was a fraud on their bargain; for the indorser, if compelled to pay, would have recourse over against the maker; whereas he had been discharged by the holder, for a valuable consideration.

The money having thus been extorted from the plaintiff, entirely through the wrongful act of the defendants, an implied contract arises, on their part, to repay him. 1 Car. M. & R. 696; 5 Tyr. 409; 4 Taunt. 189; 6 Bing. 299; 4 Nev. & Man. 770; 3 Ad. & El. 335; 5 B. & Ald. 521; 5 Barr 71; Chitty on Cont. 23-4; 7 Wend. 119; 1 Green. 76; Chitty 694 H. M. Phillips, contrà, did not deny that a right of action accrued; but contended that the proper form was a special action on the case.

The court having determined to reverse the judgment, a doubt was expressed whether the judgment should be entered on the verdict, or a venire de novo awarded.

December 19th. The cause was again argued on this question by G. M. Wharton and Perkins, for plaintiff in error. By the act of assembly, the same effect is given to the act of the court, as if there had been a demurrer to evidence, and the judge had entered a nonsuit at the trial. On demurrers to evidence, the damages are assessed conditionally. 1 Tr. & H. Pr. 363; 1 Archb. Pr. 186. The defendant chose to rest his case on the point reserved, having offered no evidence. A venire de novo is never granted, but where the verdict is insufficient to enable the court to enter judgment. 7 T. R. 52; 1 Serg. & Rawle 309; 5 Id. 351; 5 Binn. 53; 1 Rawle 427; 2 Serg. & Rawle 185; 2 H. Bl. 187. This court stands in the position of the court below, who ought to have entered the judgment for the plaintiff. 4 Serg. & Rawle 396; 6 Watts 513.

McMurtrie and H. M. Phillips, contrà. The judgment on the point reserved is to have the same effect as if entered at the trial; that is a nonsuit. Whenever there is a reversal, a venire de novo is of course; otherwise, the defendant's case is never heard. He could not be asked to take a bill of exception, after a judgment in his favor. So far as the act speaks of demurrers to evidence, it is disposed of by 10 Barr 133. The only case in which, on reversing a judgment on a point reserved, the judgment can be final, is where a fatal objection to the plaintiff's right of action is apparent on the record; never where evidence may remove the difficulty, or establish a defence. That such a contingency is a sufficient reason to grant a venire, appears in 3 Barn. & Ald. 632; 2 Str. 1124; 1 Bos. & Pul. 339. The defendant might otherwise be concluded by a verdict on evidence insufficient in the opinion of the court below.

The opinion of the Court was delivered by COULTER, J.

At the last term, this cause was argued, and the court determined to reverse or set aside the judgment of nonsuit entered by the court below, inasmuch as the action of assumpsit was, in the judgment of this court, well conceived, and would properly lie, under the facts and circumstances disclosed by the record, on the part of the plaintiff. But it was ordered that the court would hear further argument on the question, whether judgment should be entered for the plaintiff by this court, or the record remitted for further proceeding?

It would have been quite anomalous for the defendant to have sued out a writ of error to a judgment in his favor, to the whole extent of the case. It was much more reasonable, that he should rely upon the usual course of sending the cause back, if the judgment of nonsuit should be reversed by this court, for further proceedings; and in that event, he would have the benefit of his bill of exceptions to evidence, either by the court below entering judgment on the verdict, or by this court directing a venire de novo. In either alternative, each party would have the benefit of the application of the law to his whole case. But if this court...