Williams v. Mercer

• Decision Date: 09 May 1887
• Parties: WILLIAMS v. MERCER. SIMPSON v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

144 Mass. 413

11 N.E. 720

WILLIAMS

v.MERCER.

SIMPSON

v.SAME.

Supreme Judicial Court of Massachusetts, Suffolk.

May 9, 1887.

Two actions of contract or tort, tried together. Trial in the superior court, where judgment was entered for the plaintiff in each action, and the defendant appealed. The facts are stated in the opinion.

A.J. McLeod, for defendant.

The second of these actions cannot be maintained, for the reason that the plaintiff, R. Carrie Simpson, recovered judgment for the same cause of action in tort against the plaintiff in the first action, and he has satisfied that judgment, thereby releasing the defendant, his joint wrong-doer, from any liability he might have been under to the plaintiff while the judgment remained unsatisfied. Brown v. City of Cambridge, 3 Allen, 474;Stone v. Dickinson, 5 Allen, 29;Same v. Same, 7 Allen, 26;James v. City of Worcester, 141 Mass. 361, 5 N.E.Rep. 826; Goss v. Ellison, 136 Mass. 503;Stimpson v. Poole, 141 Mass. 502, 6 N.E.Rep. 705.

In the first of these actions, plaintiff cannot recover on the bond, because the damage and injury, if any, which he sustained, arose out of his own unauthorized act, done subsequent to the execution of the replevin writ. Williams v. Mercer, 139 Mass. 141;Boynton v. Morrill, 111 Mass. 4.

The plaintiff cannot recover upon his count in assumpsit. The implied promise, if any, could not be held to extend beyond indemnity against loss by reason of what he lawfully and properly did while executing his replevin writ. Boynton v. Morrill, 111 Mass. 4. Such promise was merged in the bond which he took. Andrews v. Callender, 13 Pick. 484; Wheelock v. Freeman, Id. 165. But the law does not imply a promise where the parties have expressly stipulated. 1 Dane, Abr. 22, 23. In the case at bar the bond is such stipulation. Andrews v. Callender and Wheelock v. Freeman, supra.

If the plaintiff can recover at all, it must be upon the count in tort, which, if anything, is for deceit, and based on the statements by defendant's agent that the mortgage covered the property not named in the replevin writ, which the plaintiff permitted him to remove. But the plaintiff had no right to rely on this as an absolute statement of an existing fact susceptible of personal knowledge, and especially within the means of knowledge of the defendant's agent. Tucker v. White, 125 Mass. 344;Cole v. Cassidy, 138 Mass. 437. Whether the mortgage covered the property or not could be no more than a matter of judgment or opinion, and the statement that it did was the expression of an opinion only. Page v. Bent, 2 Metc. 371. It was made in good faith, under the belief that it was the fact. And the making of such statement did not render the defendant liable to the plaintiff in this action. Cowley v. Dobbins, 136 Mass. 401;Page v. Bent, 2 Metc. 371;Tucker v. White, 125 Mass. 344;Stone v. Denny, 4 Metc. 151;Cole v. Cassidy, 138 Mass. 437.

The plaintiff and defendant, each by his conduct, contributed to cause the act adjudged to be wrongful. They are therefore joint tort-feasors in pari delicto, and neither can recover of the other indemnity or contribution. Churchill v. Holt, 131 Mass. 67; Baird v. Midvale Steel-Works, 12 Phila. 255.

Lund & Welch, for plaintiff.

The plaintiff, in all that he did under his writ, was strictly correct, and no fault was found with it by Simpson, or any one else. It was his duty as an officer to do what he did do, and he could not avoid it. He was bound to serve the writ. He served it properly. The defendant, taking advantage of the proper acts of the plaintiff, did an improper act, not intentionally, but believing that he owned the property his agent did take, and required the plaintiff to let him take it. The plaintiff could not decide this question, without a risk, either way. If he refused to let the agent take the property away, and it was lost to the defendant thereby, the plaintiff would be liable for it to the defendant, because he had interfered with the defendant's rights. The defendant forced the plaintiff into this position. The plaintiff acted innocently, remaining passive, and the law will imply a promise or liability to indemnify the plaintiff against the damage he may suffer, caused by said act of the defendant. The act was wholly the defendant's, and, as between the plaintiff and the defendant, the plaintiff was not a joint trespasser. The defendant alone was guilty of wrong, and by reason of that wrong the plaintiff has been compelled to pay the damages. Boynton v. Morrill, 111 Mass. 4, 7; Metc.Cont. 11, 12, and notes; Marshall v. Hosmer, 4 Mass. 63; Betts v. Gibbins, 2 Adol. & E. 57, 73, et seq.; Humphrys v. Pratt, 2 Dow & C. 288; Kenyon v. Woodruff, 33 Mich. 310; Adamson v. Jarvis, 4 Bing. 66; Toplis v. Grane, 7 Scott, 620, 642, 643; Chit.Cont. (8th Amer.Ed.) 440, 441, 585. There was no illegal act in this case against which the defendant could not indemnify the plaintiff. It appeared legal, and as though the defendant had a right to take the property under the mortgage. Cases before cited. There can be no question but what, if the defendant had given the plaintiff a bond to indemnify him against any liability or damage to him for this act of defendant's agent, it would have been valid, and the plaintiff could have recovered upon it. It is not a question of a bond in the usual form, but a bond to protect the plaintiff from any liability that he might incur by not acting at all, and permitting the defendant to take property which he claimed. There being no bond given, the law will imply a promise or liability as broad and effectual as the plaintiff would have had a right to have demanded. Toplis v. Grane, 7 Scott, 620, 642, 643; Betts v. Gibbins, 2 Adol. & E. 57, 73, et seq.; cases before cited.

The defendant now has the property through his own wrong, and seeks to hold it, and let the plaintiff pay for it. Defendant should have paid that judgment, and not having done so, and the plaintiff having taken care of it, he has become liable to plaintiff in this action; and the fact that a suit has been brought in the name of the said Simpson against the defendant for the same taking, for the benefit of this plaintiff, will not defeat the right of the plaintiff to recover in this action, and in that also, under the terms of the purchase and assignment, made a part of this case, there can of course be but one satisfaction of the damages, and, when the damages in one judgment are paid, that will satisfy the damages in the other. The plaintiff had the right to pursue any and all of the rights open to him at the same time, and ought not to be compelled to elect which he would pursue first, and, if he failed in that after long litigation, return to the other only to find that it had been barred by the statute of limitations.

In the case of Simpson v. Mercer the facts upon which the action is brought-that...