Gould v. Gould

8 Cow. 168

• Court: New York Supreme Court
• Decided: February 15, 1828
• Status: Published

Opinion

Ouria, per Savage, Ch. J.

It seems to me a joint action could not be sustained. This is a case of several sureties paying the debt of their principal; in which each must prosecute for the amount paid by him. (3 B. & P. 225; 2 Com. on Contr. 188; 1 Chit. Pl. 8, 9 ; 2 T. R. 282.) The action is founded upon the implied assumpsit; and the in. terest of each being several in respect to this transaction, the law implies a corresponding liability; that is, to each severally, according to his interest. So far from D. Banks, the younger, being a partner in respect to the payment, he never was even surety in his own right. The duty of the de fendant to pay the money and discharge his sureties, was never incurred in respect to *Banks, the partner, but to his father, to whom, if he had lived to pay, the law would have implied an assumpsit. Banks, the partner, would then never have been known in the transaction. Suppose the father had lived, and the money had been paid by ¥m. Gould out of the joint funds of himself and partner; ¥m. Gould would then clearly have been entitled to recover the whole. The payment of the joint funds in a matter without the partnership, operates as a severance of those funds pro tanto, according to the interest of the partners who pay. It is so far an appropriation of the joint funds to an individual purpose. It is nothing to the defendant, whether the funds out of which his debt is paid, be joint between his sureties, of several with each. That is the concern of those only who own the fund. True, where a duty arises to two persons as partners, the law will imply a promise to both jointly; but the mistake is, in supposing that because the plaintiff and D. Banks, the younger, were partners as oooksellers, they were, therefore, so in the business of being sureties. So far from this, they were not even joint sure. ties ; but one was the executor of a joint surety. It doubtful whether even two joint sureties can so shape a payment as to give themselves a joint claim. This was reluctantly allowed, upon the peculiar circumstances, in Osborne v. Harper, (5 East, 225 ;) but it was denied in Kelby v. Steel, (5 Esp. Rep. 194,) although the payment, and receipt given for payment, were joint; and in form as from two partners.

The motion for a new trial must be denied.

New trial denied.