Knapp v. Simon

The action is brought by the plaintiff to recover, of the defendants, the value of certain wheat alleged to have been purchased of one Carlos Cobb for defendants, by plaintiff, as their broker, and for which Cobb had recovered certain judgments against plaintiff, and the costs of defending the action, on the alleged ground that he had failed to disclose to Cobb the defendants as his principals. The judgments were recovered against the plaintiff, although the defendants in this action were the principals in the transaction, and the plaintiff a mere broker and surety, under allegations and proof that plaintiff failed to disclose his, principals.

The answer sets up a number of defenses, among them a release executed by Cobb for a valuable consideration to the defendant Simon, whereby he was released from all demands arising out of the transaction set forth in the complaint. It also sets up the *230statute of limitations. The other defendants were not served, and are not in the action.

The case presents only questions of law to be determined by the court. At the close of the case, there were no questions of fact- to be considered by the jury. The non-payment of the price of the wheat was admitted by the defendant. Cobb recovered of Knapp because, in purchasing the wheat of him, he failed to state the fact that he was acting as a broker merely, and dealt with Cobb as principal. The plaintiff's right to recover here does not depend upon the recovery of judgment in Cobb against Knapp. It depends upon the terms and conditions of the purchase and sale of the wheat made by Knapp, the plaintiff, on October 23, 1868. This action was commenced on April 1, 1878, about ten years after the cause of action accrued. The case clearly comes within the statute. Besides, we are of the opinion that the release executed by Cobb to Simon was an absolute bar to any recovery by the plaintiff in this action against Simon.

Carlos Cobb had a suit pending against the defendants, C. A. Steen & Co., for this same wheat. The plaintiff, wishing to settle this suit, went with the defendant Simon to Cobb’s office, where it was settled, and a release, under the act of 1838, for the relief of partners and joint debtors, was executed and delivered by Cobb to Simon, upon his paying thirty-three and one-third cents on the dollar, of Cobb’s claim. The firm of C. A. Steen & Go. was dissolved in October; 1868. The release was executed a year after the dissolution, and for it Simon paid his full ratable portion of the partnership debt, and interest. The other defendants of the firm, who are not in this suit, do not appear to be in any way connected with the plaintiff’s liability to Cobb, which entitles them to any consideration in determining the rights of the parties in this action. The liability was personal to the plaintiff ; the settle*231ment of Cobb’s suit against C. A. Steen & Go. was procured at the instance of the plaintiff, and the release then executed to the defendant Simon is a bar to this action.

The judgment should be affirmed, with costs.

I am of opinion that the plaintiff could not maintain any action against the defendant after his release by Cobb, and that at no time could he obtain any other relief, in kind or quantity," than Cobb could have properly obtained. The reason of this is a position, fundamental to all contracts. The duties of the parties to this action were such as arose from their voluntary agreement. The defendant’s firm had employed the plaintiff as their "broker, to buy of Cobb. This authorized the plaintiff to do that thing, and if he had done it, he would not have incurred any liability to Cobb. If he be at liberty to insist now, that the judgment in Cobb against him is not res adjudícala, as to the facts of his sale to Cobb, and that he did sell, disclosing his principal, then the legal consequence of such a fact must have full effect, and it must be held that, he paid the purchase-price to Cobb, without being legally liable to pay It. On the other hand, if he did not disclose his principal, this omission was not at the request, express or implied, of the defendant. The pleading does not allege that there was any request; there is no evidence that there was. The plaintiff incurred the liability voluntarily, without defendant’s requesting it, * and therefore without his being responsible for its consequences. The defendant’s liability must be confined to such consequences as would follow the exercise of the authority given by him to the plaintiff. If the .authority had been followed, the defendants would have become liable to Cobb, with no liability to plaintiff, *232excepting for brokerage and expenses. This liability to Cobb would have had, as an incident, the possibility of the single defendant, now here, being discharged from, it, under the joint debtors act. It cannot possibly be held, in my judgment, that a departure from the instructions can deprive the defendant of such an advantage, and which existed in this case.

It would seem to be involved in these views that the defendants were not connected at all with the plaintiff’s liability to Cobb, and therefore they were not liable to plaintiff, as if he were their surety. If the plaintiff upon paying Cobb, in discharging the liability, gained any right against the defendants, it would be gained upon principles of equity, that would give to-him, under the circumstances, such claim as Cobb might have against the defendants, and in this case Cobb had none against the defendant in this appeal. Nor would the plaintiff become possessed of the other defendant’s right to contribution against this defendant. This is-true, for the further reason that the other defendants-cannot claim a contribution to themselves for what they have not paid.' Probably, under no circumstances, could they claim anything, in excess of what the present defendant has paid Cobb.

I therefore agree that the judgment should be affirmed, with costs.