McBride, Sheldon & Co. v. Protection Ins.

In the writ in the original action of assumpsit,

brought by these plaintiffs, which is referred to in the declaration, in this case, the defendants were described to be “ Henry B. Anderson and Harvey Nickerson, of Coral, in the state of Illinois, partners in company, under the name and firm of H. B. Anderson & Co.; ” and the defendants, in the present suit, are alleged, in the factorizing clause, to be “ the attorneys, agents, factors, trustees and debtors of the said defendants” in that action. That writ was, after the return thereof, amended by the plaintiffs, by permission of the court to which it was returnable, by changing the name of Henry B. Anderson to that of Harvey B. Anderson, and that of Harvey Nickerson to that of Hobart Nickerson, and adding, as defendant, the name of Loyal C. Anderson; so that, as thus amended, the defendants were therein described to be “Harvey B. Anderson, Loyal C. Anderson and Hobart Nickerson, of Coral, in the state of Illinois, partners in company, under the name and firm of H. B. Anderson & Co.” The factorizing clause remained unaltered, after said amendments, so that it purported that the defendants in the present case were the attorneys, agents, factors, trustees and debtors of the defendants in that writ, as thus amended, viz.: Harvey B. Anderson, Hobart Nickerson and Loyal C. Anderson, against whom judgment, by default, was rendered in that action. There was never any debt or claim, due from the defendants in the present suit, to the said Loyal C. Anderson, either solely or jointly with the said Harvey B- Anderson and Hobart Nickerson, or either of them; and the said Loyal never was a member of the firm of H. B. Anderson *256& Co., which was composed of the said Harvey and Hobart only.

Without considering whether thé writ, in that action of assumpsit, was amendable, or to what extent, it is very clear, that if it had not been amended, but had remained as it was originally made, with respect to the defendants named therein, the service of it, upon the defendants in this suit, would not have the effect of attaching or sequestering, in their hands, any debt or claim due from them to the said Loyal C. Anderson alone, or to him jointly with Harvey B. Anderson and Hobart Nickerson, because the said Loyal would not be named, or in any way described, as a defendant in that writ, and would not, therefore, be a party to the suit commenced by it, or to any of the subsequent proceedings under it; and the factorizing clause of that writ would, moreover, be no notice to the defendants in this suit, that any such debt or claim was intended to be secured or attached in their hands, to pay the judgment which the plaintiffs should recover in that action. It is sufficient, on this point, to refer to the terms of our statute of foreign attachment. Stat.,1849, p. 115.

The plaintiffs however insist, first, that it was competent for the court to which the original suit was brought, under the general statute relating to. the amendment of writs, and the practice of our courts, to allow the amendments which were made to the-writ in that suit; and, further, that if those amendments were not allowable under that statute or practice, that suit is to be deemed to have been brought against the copartnership, consisting of the persons whose names appear therein as defendants, after such amendments, by their partnership name, and that under the 51st section of the act for the regulation of civil actions, ( Stat. 1849, p. 62,) those amendments were valid; and they thereupon claim, that such amendments being made, the same lien was acquired, by virtue of that writ and the proceedings under it, as if it had been originally drawn, so as *257to be conformable to those amendments ; and therefore, that Loyal C. Anderson is, to all intents, to be deemed a defendant in that suit, since its commencement. The present defendants deny, that, by the practice of our courts, or either of those statutes, those amendments were effectual, as against them, to attach or secure in their hands, any debt or claim due from them, when the copy of that writ was left in service, either to the whole or any part of the defendants, against whom judgment was rendered in that suit, whatever may have been their effect, as between the plaintiffs and any of those persons who were made defendants in that suit, either before or after the making of those amendments.

It need not be decided, in this case, whether the defendants in that suit were personally bound by the judgment rendered therein, although it would seem to be clear, that, as neither of them had any notice of the suit or appeared in it, that judgment would not affect either of them personally. However that may be, that suit, so far as the present defendants are concerned, was a proceeding in rem only, under our statute of foreign attachment, against the debt or claim due, when they were served with a copy of. the writ in that suit, from them to the defendants in that suit; and the question now presented to us, is, whether, by virtue of the institution of that original suit, and the proceedings under it, the debt found to be due in this case, by the present, defendants, was so attached or secured, that they are liable in this suit, to a recovery by the plaintiffs, for the amount of such debt. In order to decide this question, we do not consider it necessary, and therefore we do not intend, to express any opinion' upon the claims of the respective parties, which have been stated, in regard to the propriety, validity, or effect of any of the amendments made to the writ in the original suit; because we are clearly of opinion, that, whether those amendments were allowable or not, there can be no recovery, by the plaintiffs in this suit,

*258If, in the first place, those amendments were allowable, and the writ in the original suit is to be viewed as if it had been at first framed in accordance with those amendments, that suit and the proceedings in it would have laid no foundation for such a recovery, for the reason that, by the form and effect of the factorizing clause in that writ, no indebtedness would have been attached or secured, to respond to the judgment to be recovered in that suit, except one which might be due to all the defendants therein, from the present defendants ; whereas it is found in this case, that there was no such indebtedness, but that the indebtedness by the latter, was due to two only of the defendants in the original suit,—viz., Harvey B. Anderson, and Hobart Nickerson. The plaintiffs, therefore, here seek to appropriate to the payment of that judgment a debt which was not attached in that suit, and to which they never acquired any lien. Even if it had been competent for them to have attached, in that suit, a debt due to two only of the defendants therein, by the present defendants, (upon which we express no opinion,) they have not done so, in this instance. The present defendants are described in the factorizing process, as the debtors of the defendants in that suit; which imports, that they were the debtors of all of those defendants jointly, and not of each or a part of them only. We think that its effect was only to notify the garnishees, the present defendants, that the debt which they might then owe to the defendants in that suit, jointly, was intended to be secured, and to secure only a debt of that description. It is plain, that a debt due to two persons by a third, is entirely different from, and therefore not properly described as, a debt due by the latter to those two, jointly with another. An averment of an indebtedness by one person, is, in some cases, held to be supported, by evidence of an indebtedness by him jointly with another; because, debts due by several persons jointly, are deemed to be several as well as joint. Whether that principle would be held to apply to the allegation of an *259indebtedness in a factorizing process, need not be here considered ; because it is obviously inapplicable to a case of indebtedness to two persons only, where it is alleged to be an indebtedness to them jointly with another. On this ground also, there is a failure by the plaintiffs, to prove the material allegation, in this writ of scire facias, that the present defendants were indebted to the defendants in the original suit, which is necessary to a recovery.

The plaintiffs however insist, that the defendants in this case are estopped to deny, that they were indebted to all the defendants in the original suit, by the representations that Loyal C. Anderson was a partner with the other two of them, made by Harvey B. Anderson, one of those defendants, to the plaintiffs, when the goods were sold, for the price of which the judgment was recovered in that suit. We see no just ground for this claim. It is found, that neither the said Loyal, nor Hobart Nickerson, the other of those defendants, was cognizant of those representations, or ever authorized or sanctioned them. Those representations constitute an estoppel in pais, only for their own proper purpose, which is to preclude the person who made them, and those claiming under him, as between them and the person deceived by such representations, from denying their truth, in a case involving the character or merits of the transaction in the course of which they were made ; but not to affect other persons not privy to those representations. Therefore, in the action which was brought by the plaintiffs, for the price of the goods, it would not have been competent for Harvey B. Anderson, the defendant therein, who induced the sale by those false representations, to deny their truth, and claim that Loyal C. Anderson was not a partner with him and his co-defendant, Hobart Nickerson, in the purchase ; but neither the said Loyal nor the said Hobart would be estopped to make such' denial. . But, considering, for the purposes of the present suit, as the plaintiffs claim, that the original judgment should be viewed, as having been *260properly and regularly rendered against all the defendants in that action, in which light alone, the present suit can be sustained, the question now before us is, not whether those defendants were indebted to the plaintiffs, but whether the defendants in the present suit are estopped, by the representations which have been mentioned, from denying, that they are indebted to the defendants in the original suit. In our opinion, they clearly are not so estopped. The indebtedness of the present defendants; on which it is attempted to subject them in this suit, is founded on the contract contained in the policy of insurance, by them executed and delivered only to Harvey B. Anderson and Hobart Nickerson, the sole owners of the property insured. That contract of insurance was a transaction subsequent to and wholly distinct from, the original purchase of the goods, and that, whether those goods constituted the property so insured, or not; and the question, who are to be deemed the parties to that particular contract, is to be determined by the circumstances attending it, and not by those connected with the previous contract for the purchase of that property. There was no representation by any one, when that contract of insurance was made, that Loyal C. Anderson then or ever had any interest in the property insured, and it is found that he had not. It is most difficult to see, on what ground Harvey B. Anderson himself, who made the representations imputed to him by the plaintiffs, would be estopped, even as between him and the plaintiffs, from denying, in this suit, that Loyal C. Anderson was a party to the contract for the insurance of those goods; but, however that might be, it is quite clear, that neither said Loyal nor Hobart Nickerson, nor any person claiming under them or either of them, is precluded from insisting, according to the truth, that the former had no interest in that property, and therefore was not a party to that contract. Hence it results, that, as that contract was made by the present defendants with the said Harvey and Hobart only, a payment by the former, of the *261indebtedness which accrued by virtue of it, to the two latter, or to their assignees, would be a protection against any claim founded on it. In this case it is found, that payment of that indebtedness has been made by the present defendants to such assignees, who are really the parties here contesting the right to it with the plaintiffs; although it is a sufficient answer to the claim of the plaintiffs in this case, that the policy of insurance was not made by the said Loyal jointly with the said Harvey and Hobart.

Thus far we have considered this case, as though all the amendments, made to the writ in the original suit, were allowable.

If, however, the amendment, adding the name of Loyal C. Anderson as a defendant, (to say nothing of the other amendments,) was not allowable, and is, therefore, to be merely disregarded, or treated as if it had not been made, (which is the least effect that can be claimed for it by the plaintiffs,) the objections to a recovery in this action are more numerous, and more palpably insuperable. Indeed^ the counsel for the plaintiffs have not claimed before us, that, if that is the light in which the case is to be considered, they are entitled to judgment.. Without noticing all those objections, or dwelling upon any of them, it is sufficient to say, that the said Loyal, not being mentioned in that original writ, and therefore not being a party to that suit, would not be affected by the judgment in it, which, as to him, would be a nullity, and therefore furnish no evidence of any indebtedness from him to the plaintiffs ; that, as we have before remarked, in considering said amendment, if allowable, not to have been in fact made, there would be nothing in the factorizing clause of that writ, to indicate, that the present defendants are indebted to him, either solely or jointly, with the defendants named in that writ, or either of them, and therefore that no lien on such debt could be created or secured by the plaintiffs, by virtue of that process ; and that, moreover, the averment in this writ of scire facias, *262that it was alleged in that original writ, that the said 'Loyal was, jointly with the other defendants, therein mentioned, indebted to the plaintiffs, would be negatived, by the finding1 of the court, in this case.

The superior court is, therefore, advised, to vender judgment in favor of the defendants.

In this opinion, the other judges concurred.

Judgment for defendants.