Vorley v Barrett
| Jurisdiction | England & Wales |
| Judgment Date | 07 November 1856 |
| Date | 07 November 1856 |
| Court | Court of Common Pleas |
English Reports Citation: 140 E.R. 94
IN THE COURT OF COMMON PLEAS, AND IN THE EXCHEQUER CHAMBER.
S. C. 26 L. J. C. P. 1.
[225] vorley v. barrett. Nov. 7, 1856. [S. C. 26 L. J. C. P. 1.] A., B., and C. respectively drew, accepted, and indorsed a bill for 3001. for the accommodation of D. B., having paid the amount of the bill to the holder at maturity, sued A. (his co-surety) -for contribution. A. pleaded, that, after the drawing, acceptance, and indorsement of the bill, and before it became due, D. became bankrupt, and after B. had so paid the bill, he agreed with the assignees of D., that, in consideration of their delivering up to him a certain building agreement then subsisting between him and D., he (B.) would pay them 1501., and would relinquish (amongst other things) all moneys advanced to and for D., to wit, the 3001. so paid in satisfaction and discharge of the bill; that this agreement was fully performed; and that thereby, and without the consent of A., D. and his estate were exonerated from the claim.-To this plea, B. replied "on equitable grounds," that the bill was drawn, accepted, and indorsed, and the amount paid by him, as alleged in the plea; that, before the bankruptcy of D., he had advanced him moneys to the amount of 26611. 6s. 6d. to assist him to build certain houses pursuant to the terms of the building agreement mentioned in the plea, and had sold him timber and materials for the same purpose to the amount of 15121.; that, D. being so indebted to him in the sums above mentioned, and also in the sum of 3001. so paid by him in discharge of the bill, and in 1361. 17s. 4d. for moneys advanced to him for other purposes, it was agreed between him and the assignees of D. that the building agreement should be delivered up to him to be cancelled on his paying them -1501. in discharge of all claims which they might have on the houses and property comprised in the building agreement, and that he should relinquish all claim on the estate of D. for the moneys advanced by him to D. for the purpose of the erection of the said houses, and for the materials so supplied as aforesaid, but that such agreement did not extend to the 3001. paid in discharge of the bill, nor to the 1361. 17s. 4d.; that, with a view to putting that agreement into writing, the following memorandum was drawn up :-" It is hereby agreed between the assignees and B., as follows : that the building agreement for eighteen houses on land in, &c. be given up to B. to be cancelled, on payment by him to the assignees of 1501. in full for all claims they may have on the property ; B. hereby relinquishing all claim for moneys advanced to and for the bankrupt, and his claim for goods supplied for the above-mentioned houses,"-that the memorandum was signed by him (B.) and the solicitors of the assignees in the belief that it was in conformity to the agreement so made as aforesaid ; and that the same was worded as aforesaid by mistake and error, so as to include and relinquish his claims against D. and his estate on account of the 3001. paid by him (B.) in discharge of the bill, contrary to the true intention of B. and the assignees when they signed the memorandum; that B. never relinquished or gave up his said last-mentioned claim against D. and his estate, nor agreed to do so, nor was the same ever satisfied or discharged in any other manner than by the memorandum so executed in error as aforesaid; and that the real and true agree- 1 C. B. (N. S.) 226. VORLEY V. BARKETT 95 ment so made between B. and the assignees as aforesaid, was in all respects performed and fulfilled by the said parties thereto :-Held, that the replication disclosed a good answer " on equitable grounds " to the plea,-whether the written memorandum did or did not include the claim for the 3001.; for, that the defendant, by demurring to the replication, admitted, that, if it did include that claim, it did so by mistake; and, the agreement having been executed, this court was bound to grant the plaintiff the same relief that the plaintiff would have been entitled to in equity, without compelling him to resort to a court of equity to reform it.-A replication "on equitable grounds" may be a good legal as well as equitable answer to a legal plea : but, where the plea is pleaded "on equitable grounds," the replication must also be considered on equitable grounds. This was an action for money paid, money lent, and money found due from the defendant to the plaintiff on accounts stated [226] Second plea,-as to 1001., parcel of the money claimed,-that the said sum of 1001. was and is the third part of a sum of 3001. paid by the plaintiff in satisfaction and discharge of a bill of exchange dated the 10th of January, 1854, drawn by the plaintiff on and accepted by William John Watson, payable to the order of the plaintiff three months after date, and indorsed by the plaintiff, and by the defendant, and one George Kent, respectively, and which bill of exchange the plaintiff and the defendant and the said George Kent respectively so drew and indorsed respectively for the accommodation of and as sureties for the said William John Watson, and which the defendant and the said George Kent so indorsed respectively at the request of the plaintiff: That, after the drawing, acceptance, and indorsement of the said bill as aforesaid, and before the same became due, the said William John Watson became and was a bankrupt within the true intent and meaning of the statutes in force concerning bankrupts; and such proceedings were thereupon had, that certain persons were duly appointed and became and were the assignees of the estate and effects of the said William John Watson as and being such bankrupt as aforesaid : That thereupon afterwards, and after the plaintiff had so paid, satisfied, and discharged the said bill as aforesaid, to wit, by payment of the amount thereof to John Garland, the lawful holder thereof, and before this suit, an account was had and stated by and between the plaintiff and the said assignees, as and being such assignees as aforesaid, and it was, without the defendant's privity or consent, then agreed by and between the plaintiff and the said assignees, as and being such assignees as aforesaid, that, in consideration of the said assignees, as and being such assignees as aforesaid, delivering up to the plaintiff to be cancelled a certain building agreement in writing, which had been before then entered into and was then subsisting, by and between [227] the plaintiff and the said William John Watson, the plaintiff should pay to the said assignees, as such assignees as aforesaid, 1501., and would relinquish (amongst other things) all moneys advanced to and for the said William John Watson, to wit, the said money so paid by the plaintiff in satisfaction and discharge of the said bill...
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