In my opinion, the third reason of appeal is well founded.
It was undisputed that the third parties, who furnished the materials, had charged them to the defendant by order of the plaintiff, and that, before the defendant paid them, it was notified by the plaintiff that he would not pay them nor allow the defendant for them if it should pay them. The defendant thereupon asked the court, in substance, to instruct the jury that if the materials were charged to it by the plaintiff's order, and, as between it and the plaintiff, it was the plaintiff's duty to pay for them, the defendant should be allowed what it had paid for them, after crediting them on its books in good faith, notwithstanding such payment was made after notice from the plaintiff that he would not *Page 364 pay the bills. The important point thus presented was as to the effect of notice before payment.
The court properly declined to give the charge requested, for, in omitting any direct mention of payment, it was inaccurate in form, and then instructed the jury to allow the set-off, if the plaintiff was liable to pay the bills, and had expressly or impliedly requested the defendant to pay them on his account, or had consented to such payment; or if the plaintiff was liable to pay the bills, and had had them charged to the defendant, and it had paid them in good faith, believing that the plaintiff would credit it with the amounts so paid; but not to allow the set-off if the defendant paid the bills officiously, without the plaintiff's request and consent, and without his ratification or against his approbation.
An implied request is often a matter of legal fiction. "If money be paid by a person in consequence of a legal liability to which he is subject, but from which a third person ought to have relieved him by himself paying the amount, a request may be implied." 1 Chitty on Pleading, 350; Post v. Gilbert, 44 Conn., 9, 14. In the present case, if the parties furnishing the materials charged, by the plaintiff's direction, to the defendant bills which it was the duty of the plaintiff to pay, in consequence of which the defendant, in good faith, gave them credit for such charges on his books, the law would raise an implied request from the plaintiff to the defendant to pay them; and this legal consequence of such a state of facts should, I think, have been stated to the jury, in explanation of the phrase "impliedly requested." Such an implied request is unaffected by any declaration to the contrary on the part of the party against whom it is implied. It seems to me, therefore, that the charge was erroneous in making the right of set-off dependent on the defendant's belief, at the time of its payments, that such payments would be credited to it by the plaintiff. In the face of an express notice given by the plaintiff that, if the defendant paid the bills, he would not repay the defendant, the defendant could not have believed that *Page 365 the plaintiff would give it credit for them, while yet it might well believe that the law would compel him to allow them in account, though paid "against his approbation."
The majority of the court regard the clause in the charge as to the defendant's belief as simply giving an example of what would constitute or indicate good faith in making the payments. But if the instructions in regard to good faith required any illustration by example, it seems to me insufficient, if not misleading, to rely on that given alone. Good faith could equally have been shown by payment under an honest belief that the law would enforce reimbursement, though no credit were given on the plaintiff's books, and the defendant knew that he would withhold or even had refused his approbation.
I think that the jury should have been instructed as to the effect of the notice not to pay, given before payment, and that the instructions given, bearing on this point, as to the plaintiff's request or approbation, and the belief of the defendant, were such as may have served only to direct attention to matters not decisive of the issue.
I am, therefore, of opinion that a new trial should be granted.