Elmendorph v. Tappen

5 Johns. 176

• Court: New York Supreme Court
• Decided: November 15, 1809
• Status: Published

Opinion

Kent, Ch. J.

delivered the opinion of the court. The plaintiff below declared upon a joint promise by all the defendants ; and unless the evidence offered, supported the charge of a joint assumpsit, either express or implied, he was properly nonsuited. I did think, at first, that the consent of all the joint debtors was implied, by thé request of one of them to the plaintiff, to pay their bond; but on adverting to the condition of the bond, this inference cannot be supported. It appears on the face of the bond that the debt was the proper debt of three of the co-obli* , , _ . , gors5 but that Tremper, the other co-obligor, was mere* ly a surety, and that he had no interest in the distillery, for securing the duties on which the bond was given. A request by one of the debtors might, perhaps, well enure as the request of all who were concerned in interest and were ultimately responsible to each other, for the payment of a ratable proportion of the debt. If the defendant who made the request to the plaintiff, had himself paid off the bond, he never could have called upon Tremper to contribute, though as between the other defendants, who had equal interest, he might; They were partners in the distillery, and the act of one might, perhaps, well be deemed the act of all. This however ought not to be extended to Tremper. When the bond was once discharged, he had no further concern or interest in the transaction; and a payment at the request of one of the obligors, ought not to have a greater operation than an actual payment by that one. The court are accordingly of opinion, that the law in this case will not imply an assumpsit in Tremper, that the nonsuit was properly directed; and that the judgment must be affirmed.

Judgment affirmed,