Haupt v. Mills

By the Court.

Lumpkin, J.

delivering the opinion.

An action of assumpsit was brought by Henry Haupt, against Adam Cope, in the Superior Court oi Chatham County, for contribution, to require of the defendant to pay to the plaintiff one half of the amount of a decree which had been rendered against the said Adam Cope and Henry Haupt, in said Court, and which had been paid in full by Haupt. Pending the suit, Adam Cope died, and his administrators, Charles F. Mills and Abraham Harmon, were made parties by scire facias, to said suit. On the trial of the cause, plaintiff’s counsel offered in evidence the execution which had been issued against the said Adam Cope and Henry Haupt, founded upon the original decree obtained against them jointly, it being admitted by defendant’s attorney that the debt had been satisfied by Haupt. The defendant’s counsel objected to the introduction of the execution alone, with the proof of payment. Plis Plonor, Judge Fleming, excluded the testimony. The decree upon which the execution issued, was then tendered, and upon being objected to, the Court ruled that the entire record of the cause must be introduced, which was done, including the bill, answers exhibited, &c. in the original proceeding in Chancery. From this document, it appeared that one Christian Gugle died in 1814, seized of a considerable real and person al estate; and leaving a widow and several children, as his next of kin and heirs at law. Adam Cope and Frances Gugle, the widow, administered upon the estate. It is admitted, in the answer of Mrs. Haupt, formerly Frances Gugle, that Adam Cope, her uncle, had acted altogether for her benefit, and without emolument to himself — not even retaining any portion of the commission for his trouble. Frances Gugle intermarried with Henry Haupt, who thus, under the law as it then stood, (1S16,) became associated with her in the administration. A bill was filed, and a decree rendered in favor of the heirs at law, or a portion of them, of Christian Gugle, against Adam Cope, Henry Haupt and Frances Haupt, to recover their distributive share of the estate of Christian Gugle. And it is upon this proceeding that the action for contribution is brought. The record was offered by plaintiff’s counsel, with the reservation, that it was intended merely to show that the decree was regularly obtained. But the defendant’s counsel objecting to this limitation or reservation upon the record, the Judge decided that the record might be used generally, for all purposes material to the issue; and that the separate answer of Adam Cope, to the bill filed against Henry Haupt and wife and himself, could now be used in evidence,' touching the matters therein contained in the present action, inasmuch as it went to show the facts upon which the decree was rendered. It was in proof that the statements in this answer were uncontra-dicted on the former trial.

In submitting the case, the Court charged the Jury that the record before them was the highest evidence of the indebtedness of the defendants to the complainants, but that it was not even prima, facie proof of the liability of Adam Cope for contribution, if they should believe, from the facts disclosed, that the joint decree against both, was for a waste committed either by Henry Haupt or his wife. The Jury returned a verdict for the defendant.

To these several decisions on the questions arising on the admissibility of the testimony, and the charge of the Judge to the Jury, the plaintiff by his counsel excepted.

[1.] Did the Court below err in requiring the plaintiff to introduce the entire record of the previous proceeding against the defendant and himself; or in holding that the answer of Adam Cope to the bill in Chancery, might be read in order to ascertain from the facts of the former cause, whether or not there was any justice in this claim for contribution; or lastly, in instructing the Jury, that the proof did not amount to a prima facie right of recovery, provided they were satisfied that the decree rendered in the former cause, was on account of the waste of the estate of Christian Gugle, either by Henry Haupt himself, or his wife?

We have examined the record carefully, and find no cause for remanding tliis case. The judgment below might properly be sustained for the reasons assigned in the argument, and upon the authorities there cited. We believe it can bo maintained on another ground. It is clear that co-trespassers and other joint wrong-doers, are not entitled to contribution, where one pays the whole of a. judgment recovered against them. Campbell vs. Phelps, 1 Pick. R. 65. Vose vs. Grant, 15 Mass 505. Thweatt vs. Jones, 1 Rand. 328. Dupuy vs. Johnson, 1 Bibb, 562. Wilferd vs. Grant, Kirby, 116. Peck vs. Ellis, 2 Johns. Ch. R. 131. It is equally well settled, that executors and administrators are not liable for waste committed by each other, unless they were knowing or assenting at the time to such devastavit or misapplication of the assets; and that merely permitting a co-representative to possess the assets, without going further and concurring in the application of them, does not render him answerable — each being answerable only for his own acts, and what he receives and applies, unless he joins in the direction and abuse of the trust fund or property. Hargthrope vs. Milfuth, Croke Eliz. 318. Toller, 472. Bacon’s Abr. Executor, &c. D. 2 Godolphin, 134. Douglass vs. Satterlee, 11 Johns. 21. Peter vs. Bunly, 10 Peters, 532. 2 Williams on Ex’rs, 1118, et seq.

The decree and the execution in this case, therefore, did not necessarily raise a presumptive right of recovery against the defendant. Where the judgment which has been paid off, was founded upon contract, as was the case of Dent vs. King, 1 Kelly, 200. There its payment establishes & prima facie claim for contribution. In the absence of such proof, it is not, we think, exacting too much, to impose on the plaintiff the burden of producing the entire record. Haupt complains, that he has paid money for Cope, which, ex ecpao et.bono, Cope was bound to refund. Let him make good his averment by the production of the record.

And while we recognize the rule in Equity, that the answer of one defendant cannot be used against his co-defendant, unless there be some privity established between them ; still, when it is recollected that the previous decree against Cope and Haupt, was based alone upon the answers of the defendants to the then bill; and that that recovery is made the sole foundation of the present action, we see no well-grounded exception to the order of the presiding Judge, allowing Cope’s answer to be read, as well as the answer of Haupt, the plaintiff. There is, so far as we can perceive, no other method of determining whether the claim now set up, is founded in justice.

But admit that the Court wás at fault upon all of these points, still we should be disinclined to disturb the verdict. In an action of assumpsit for money paid, the equity of the transactions between the parties, will always be taken into consideration. Conlon vs. Greene, 2 Caines, 154. Would it be conscientious to make Adam Cope answerable to Henry Haupt, either for Haupt’s own delinquencies or the defalcations of his wife, when Cope himself, as the evidence shows, had no participation in the negligence or fraud1? We think not, and must, therefore, as we do, affirm the judgment of the Circuit Court.