
    Morrison against Berkey.
    
      Monday, September 17
    ■In Error.
    A surety for another in a bond, who gives the obligee a new bond with surety, and a warrant of Attorney, on which judgment is entered up, but no money is paid cannot recover againstthe principal in an action, on the common money counts, for money paid, &c.
    ERROR to the Court of Common Pleas of Somerset county.
    
      Assumpsit in the Court below by Peter Bérkey against Abraham Morrison. The declaration contained three counts.
    The first count stated that Berkey had become surety for and on behalf of Conrad Piper and Joseph Vickroy, trading under the firm of Piper and Vickroy, in the penal sum of 1600 dollars conditioned for the payment by the said Berkey, Piper and Vickroy, or either of them of the sum of 800 dollars to a certain George Kimmel,¡cm., and the same afterwards became due, and was demanded by the said George Kimmel, jun., and the said Piper and Vickroy neglected to pay : that after-wards Morrison became a partner with Vickroy; and the money being due and unpaid, the plaintiff intended to pay it, and institute a suit against Piper and Vickroy for reimbursement and indemnity ; and was proceeding to do so, when the defendant, in consideration that he would not proceed to pay off the bond, and institute a suit, and would allow Piper and Vickroy a reasonable time to raise the money, promised to indemnify the plaintiff from all damages to rise by being surety, and if the money should not otherwise be paid, would pay the same and would be responsible for the said debt, averring that the plaintiff1 in consideration thereof did not proceed to pay off the bond or institute suit against Piper and Vickroy, and allowed them a reasonable time, viz. four weeks to raise the money: that Piper and Vickroy did not pay the debt, but the same remained and yet remains due and unpaid by Piper and Vickroy, nor was it paid except by the plaintiff, who was obliged to pay, and did pay the debt and interest in full. Nevertheless &c. ■ The second count was for money paid, laid out and expended by the plaintiff to the use of the defendant. And the third for money had and received.
    On the trial in the Court below, in June, 1819, the plaintiff, to support the declaration, offered in evidence a bond, dated the 24th of March, 1812, purporting to be from Berkey, Piper and Vickroy, to George Kimmel, jun., corresponding in other respects with the declaration, but it was signed “for Piper and Vickroy, Conrad Piper” with a seal annexed, and also signed and sealed by Peter Berkey.; on this bond was indorsed a receipt of satisfaction in full, signed by George Kimmel, jun. The defendants objected to the admission of this bond in evidence, on account of the variance, but the Court admitted it “ to shew the amount of the claim, not as evidence of the assumpsit.” To this opinion the defendant excepted..
    The plaintiff then produced as a witness George Kimmel, jun., who testified that in the summer of 1812, the defendant said that he had become a partner of Vickroy, in the room of Piper. He requested Kimmel to wait nine months for the payment of the bond, and acknowledged he was liable to pay the bond. After the nine months had expired, Kimmel asked the defendant to pay the money, and told him the time was up. He said he was not able to pay the amount, but would pay the interest, and he paid Kimmel 48 dollars, on account of one year’s interest, a receipt for which was indorsed on the bond. Kimmel saw Piper and Berkey sign the bond, but Vickroy was not present and did not sign it. Berkey never paid Kimmel the money. On the 12 th of August, 1814,he gave Kimmel a judgment bond with Joseph Reed as security for the arhount of the debt and interest: the judgment was entered in Somerset county, and remained unsatisfied. Piper and Vickroy were discharged from their debt, by the judgment bond of Berkey and Reed. Kimmel did not recollect that Berkey called on him to give him time ; or that he knew that the defendant was to pay the bond. The defendant advised Kimmel to bring suit against Berkey, and brought him. a note from Berkey addressed to Kimmel, in which Berkey informs Kimmel, “ I have seen Mr. Morrison, and have been consulting with him, and he says the best for me in regard to the bond in your hands against me is, as he will direct you to, for them and me.” The defendant asked Kimmel to give him the bond to bring suit against Berkey, having just come from Berkey’s. This was some time after the re.ceipt on the bond. George Graham was present and said, “ Morrison, you have assumed to pay this money.” Morrison said he had not. Graham said you have. Morrison said no more. Kimmel considered his debt secured by Berkey and Reed. He had given notice that the proceeds of tin sale of Joseph Reed’s property, then, (at the time of. the trial) selling by the Sheriff, should be paid towards his judgment against Berkey and Reed. He did not know of any property owned by Piper and Vickroy. He considered Berkey’s land worth 4000 dollars.
    
      Joseph Vickroy, another witness, produced on behalf of the plaintiff stated that Piper and he were in partnership, and. had a loan of 800 dollars from Kimmel; part of it was in money, and part in clothing and provision for their hands. The whole amount was for the use of Piper and Vickroy. He thought Piper made the contract with Kimmel. The defendant and Vickroy made a contract afterwards in writing, and Morrison agreed to pay some of the debts. The defendant and Vickroy had an arbitration and settlement between them, when Vickroy was found in arrear about 3500 dollars: the defendant was to pay him 1000 dollars, and then he would be behind about 2500 dollars. He did not know that the defendant got credit in the settlement for the amount of Kimmel's bond. He purchased out Piper’s interest, and then took the defendant as a partner. Some months afterwards he thought this bond was mentioned in the settlement. The defendant admitted that Viper .and Vickroy were insolvent in and before 1814. The plaintiff then proved a judgment obtained by Thomas Vickroy, at May Term, 1812, and a mortgage given by'them to Daniel Livingston, on the 9th of May, 1-810. ’ ' . '
    
      George, Graham was then produced as a witness for the plaintiff, who testified that the' defendant came to his house about the time he entered into partnership, and said he wanted to know what time the creditors of Piper and Vickroy would give-. Graham said that he would give' nine months. Kimmel was.present and said he would give the same. The defendant said that was very'well.' ' He then said I have entered into partnership. Kimmel and he talked about their debts. In the evening the defendant shewed Kimmel a schedule "of the debts he was to pay, but the witness did not re-, collect whether this bond was in' it. His own claim was in it, and the defendant had since p’ai'd that.
    The plaintiff then proved the petition of Joseph Vickroy, at the term when the trial took' place, for the; benefit of the. insolvent law, and also the record of a judgment at May Term, 1815, .in favour of George Kimmel, jun,, against Berkey and Meed, and a scire facias to May Term, 1816, on which nulla bona was returned. He then proved a "memorandum of an agreement made on the Sd of August, 1812, between Joseph Vickroy of the one part, and Abraham Morrison of the same county, of the other part; that the said Vickroy¿ in consideration of what followed, covenanted and agreed to convey, assign and confirm to the said Morrison, his heirs and assigns, forever, the one undivided interest and half "part of Mary Ann Forge, with the land and stock thereto now belonging, and the undivided half of all the horses, wagons, "tools, houses, household furniture and implements of every kind and de-' scription, attached to and properly belonging to the said premises and concern. Subject nevertheless to all mortgages' and judgments now binding on the said premises, that is to say, the one half part of the said mortgages and judgments, and subject also to the payment of the oné half of.'the outstanding debts, contained in a schedule hereunto annexed, In consideration of which, the said Morrison agreed to discharge and fulfil the contract between the said Vickroy and Conrad Piper, paying to the said Piper twelve tons of bar iron, agreeably to the said contract. The’ sums due by the said Piper to the late firm of Piper and Vickroy, to be deducted therefrom. And the said Vickroy and Morrison thereby entered into partnership, to carry on the said forge, at their joint expense, and to be equal sharers in the profit and loss. And th.e said Vickroy, further on his part, agreed to manage the said works personally, with vigilance 'and fidelity, during the said partnership thereby entered into. And the said Morrison agreed to attend at Pittsburg from time to time, to contract for the sale of iron, and transact all business there that the firm might think necessary to promote their mutual interests. And it was further agreed, that neither "of the said parties should sell or dispose of their interest in the said forge and premises to any other person, without previously consulting the other partner, and giving him the refusal thereof, on the terms which may be. offered. And it was further agreed by the said parties, that in case any difference or dispute should arise between them, which they cannot otherwise accommodate, the same should be submitted to three respectable men, to be mutually agreed on by the said parties, whose decision shall be final.
    For the true and faithful performance of all and singular which said covenants and agreements, the said parties bound themselves to each other, their heirs and assigns, &c.
    To this agreement was attached a list of debts, as nearly as the same could be ascertained, among others.George Kim-#7.<?/, jun, 800 dollars.
    To this evidence the defendant demurred, and prayed the judgment of the Court that it wás not sufficient to entitle the plaintiff to maintain his action : the defendant joined in the demurrer, and the Cburt rendered judgment for the plaintiff; the counsel having, before the jury were discharged, agreed, instead of assessing contingent damages, by the jury, that judgment should be rendered for the sum of 1108 dollars, 65 cents, if the Court’s opinion should be in favour of the plaintiff,
    
      
      Alexander and Baldwin,.for the plaintiff- in error.
    The Court erred in allowing the bond to be read in evidence, because it did not correspond, with the bond set forth in the declaration. The declaration throughout, speaks of the bond, as the bond of Piper and Vickroy ■; whereas the bond given in evidence, is signed and sealed ’only by Piper, /or Piper and Vickroy, and is not the bond of. Piper and Vickroy, but of Piper only. The bond of one partner is not the bond of both partners. 1 Dali. 119. That such a bond existed as that averred, was. a material fact. It was not merely requisite to shew the'amount due. If it be considered, as evidence only for that purpose, then the proof is deficient in not shewing such a bond as,the declaration alleges.
    .The evidence given, in the cause, did not support any of the'counts in the declaration. There is no bond of Piper and Vickroy p.roved,' as is there stated : nor that Berkey was about to pay the bond and put it in suit: nor that the defendant below had requested Berkey. to delay suing or to give time to Piper and Vickroy ; he .spoke with Kimmel, not with Berkey.. There is no proof that the defendant below, assumed to pay Berkey or in any way to indemnify him. Nor is there any evidence that Berkey paid the money to Kimmel, but the reverse is expressly proved. There was no contract with Berkey. Kimmel states, that he does not know that Berkey was informed that the defendant below,would pay the bond. Further, there is no proof that the defendant below was to pay on demand: if at all, he was to pay after nine months. And lastly, there is no proof of notice to the defendant below of the nonpayment, unless his payment of interest can be so considered. ' It is a general rule, that in all actions of assumpsit on special agreement, the cont.ract must be proved precisely as it is laid. Gilb. Evid, 386 to 390. 2 Serg. Rawle, 68. In 2 Johns. Rep. 213, this rule is recognised and established on facts similar to the present. The terms of the partnership.entered into by Morrison, did not make him liable for Piper’s debt. If the money was borrowed by Piper for the use. of the partnership, so as to give an equity against the partnership funds, it ought to have been so specially alleged. Giving a bond is no payment to support the allegation that Berkey had paid the mohey to' Kimmel, particularly as it appears that the bond is not paid, and the amqunt is claimed out of Reed’s property. 8 Johns. Rep. 156.
    'The second .and third counts are equally unsupported. The giving a new bond • and security in lieu of a former bond, is not payment so as to'support a count for money paid, laid out and expended to the use of the defendant, any more than to support a count upon a special contract when such averment is made. As to evidence of money had and received, it is out of the question. No proof was given on that point.
    Foster, contra.
    1. As to the bill of exceptions. There are three counts, and it is sufficient if the bond was evidence on any count. The special count only states that Berkey was security in a bond in behalf of Piper and Vickroy, not with him.
    2. The law implied a promise from Morrison to pay this bond by virtue of the transactions between the parties, and the evidence shewed an express promise to pay it. The jury had a right to infer that Morrison had in his hands property to the amount. Giving up the one bond, with a receipt in full upon it, and taking another, on which judgment was entered, was to all intents and purposes a payment.
   Duncan J.

delivered the opinion of the Court.

The first count in this declaration, has been properly abandoned b\ the defendant in error. The evidence demurred to, did not tend to maintain the special contract. A jury could not have reasonably inferred the facts from the evidence. He rests his case on the money count, for money paid, laid out, and expended, for the use of the plaintiff in error.

The main question is, could the receipt by Kimmel, of the bond of Berkey and Reed, received in payment and satisfaction for the bond of Vickroy, Piper and Berkey, which Morrison had bound himself to Vickroy to pay, and the judgment and levy thereon, but on which no money had been actually levied, support the allegation of money being ’paid by Berkey, for, and on account of Morrison.

The demurrer to evidence.is to be taken most strongly against him who demurs ; and where it is to circumstantial evidence, his adversary may refuse to join in the demurrer, unless every fact is distinctly admitted on record,-and every conclusion which the evidence offered, conduced- to prove. So-if the evidence,Conflict, the party demurring, must admit that of his adversary to be true, so far .as • it conflicts with his own. .Where he does join, the Court act on the same principles, and'may-draw any conclusion which 'a jury, justifiably, might draw ; but ought not to make ’forced inier- . epees, where there is nothing from which-they can be drawn.

It is impossible, hebe to infer, that the plaintiff below paid any money on the transaction on- which he predicates the liability of 'Morrison. There is no spark of evidence'of an express promise of any kind by Morrison to Berkey. A moral obligation is a sufficient consideration to support an express . promise, but will not .raise an implied one. The legal obligation of Morrison-to Berkey, is supposed to be founded on Morrison’s covenant w'itb Vickroy, to discharge the original debt of Vickroy and- Piper, whose surety Berkey was to 'Kimmel, and on the parol promise of Morrison to Kimmel to pay it, and on the principle that de fació. Morrison became the debtor of Kimmel, with Berkey still' remaining' bound to Kimmel, and that Berkey having satisfied this debt is entitled in- his own name to this action against Morrison, as a surety, havirig a right to all the means-which Vickroy had against Morrison, on his covenant with him, or which Kim~ -mel had on his express promise to pay this-debt; and that by all this evidence, this becoming the proper debt of Morrison, which Sergey .was-,bound in law to pay, and which he has satisfied, Morrisori is liable over to' him as if he had actually .paid the money.

However just the general principle is, that where one comes under an obligation, to pay the debt of another, and does pay it, he may recover over, the Court refrains, from giving an opinion how far this principle would apply- to this case and these parties ; Because the allegation is, not that he entered into a new liability, or that he gave a new bond with security to pay the debt of Morrison, which was received in satisfaction of the former, which bond had been .put in suit, and he damnified by it, but that he actually paid the. money on account of Morrison. ' • ' '

In all actions on general money epunts, for money lent to defendant, or laid but. on his account,, or received by him for the plaintiff* the technical rule is, that it must be proved accoraing to the allegation. A specific article, or security advanced for another, is not money paid on his account. The new security given here for the defendant’s debt, is not money, nor the current representative of money; it is a security, and nothing more, until it is actually paid. It is now tod well settled, to be debated or called in question, that a contract for a specific thing, as stock, or specific security,-is not the same as-m.oney,.and cannot be recovered as'.such. Nightingal v. Devisme, 5 Burr. 2592. -In this form of action, a surety qua surety, cannot sue the defendant until he has actually paid the money, though he may have- been sued and judgment against him. Powell v. Smith, 8 Johns. 192. The furthest Courts hate goné is, where a negotiable nóte, or bill of exchange has been given and* received in satisfaction for the debt of another. This will support the count for money laid out and expended. Cumming v. Hackley, 8 Johns. 156. But the giving any other surety will not. This has been decided on the principle of- negotiable paper, being the representative of money ; but a bond has no analogy, to cash. As hetween the obligor and the obligee, the receipt of one security as payment of another, given and received in satisfactibn, will discharge the first.

The judgment, and execution on the bond of Berkey and Seed, does not prove that the money was paid, and all conclusion of payment is excluded A jury could not presume it from the judgment and levy.- The Court cannot infer it contrary to the evidence.of the plaintiff, which is, that it was not. The judgment in this demurrer should have been entered for defendant below, because a bare liability to pay-the debt of another, whatever cause of action it may afford, could not give the same action, as an áctual payment on his account. . It is clear, that evidence of a liability to pay money on account of another, is different from the allegation that he has paid it. The grievance is different. The advance of a specific article, on account of another ;. security given for another ; the Court are of opinion, will not maintain a count for money paid for him. To recover on a general countfor money paid, it should appear to be' money actually and necessarily paid to the party’s use. There must be an actual advance of money. It has not been considered necessary to give any opinion on the admission of the bond in evidence, on which a bill of exceptions was filed. As the-Court are of opinion, that if it was properly received, the judgment Ought to have been for the defendant below. Had this cause been sent back to the Common Pleas, on the award of venire facias de novo, it would have been the duty of this Court to have decided on the exception.

The Court will hereafter direct the mode of entry of the judgment. .

The Court directed the entry.-—Judgment reversed, and judgment to be entered for defendant below, the plaintiff in error.

Judgment reversed.  