271. Wherever one person requests or allows another to assume such a position that the latter may be compelled by law to discharge the former's legal liabilities, the law imports a request and promise by the former to the latter - a request to make the payment, and a promise to repay - and the obligation thus created may be enforced by assumpsit.
It is a rule of law that no man "can make himself the creditor of another by paying that other's debt against his will or without his consent," 20 or at least without some act on his part which will prevent him from withholding consent. Assumpsit will not lie, therefore, for money officiously paid by the plaintiff for the defendant's use. The defendant must have requested such payment, or he must, by his conduct, have made it necessary for the plaintiff to pay. Where a person expressly requests another to pay money for him under such circumstances as to import a promise to repay, and the money is paid in accordance with the request, the transaction involves an actual agreement. Where no request in fact exists, and there is no agreement in fact respecting the payment, the law may imply a fictitious request. As a rule, wherever one person requests or allows another to assume such a position that the latter may be compelled by law to discharge the former's legal liabilities, the law imports a request and promise by the former to the latter - a request to make the payment, and a promise to repay. It will not do to say that there was no agreement in fact, for the law creates the promise.21
20 Johnson v. Packet Co., L. R. 3 C. P. 43; Durnford v. Messiter, 5 Mnule & S. 440; Hearn v. Cullen, 54 Md. 533; Turner v. Egerton, 1 Gill & J. (Md.) 430, 1!) Am. Dec. 235. See "Money Paid," Dec. Dig. (Key-No.) § 1; Cent. Dig. §§ 1-16.
A good illustration of such an obligation is where one of several sureties, or other joint debtors, pays the whole debt. In such a case he is allowed to recover from each of the others his proportionate share. A request to pay and a promise to repay are feigned in order to entitle him to the remedy of assumpsit.22 So, where an executor was compelled to pay a legacy duty for which the legatee was ultimately liable, he was allowed to recover the amount from the legatee as money paid for his use.23
21Anson, Cont. (8th Ed.) 363; Great Northern Ry. Co. v. Swaffield, L. R. 9 Exch. 132; Exall v. Partridge, 8 Term R. 308; Sapsford v. Fletcher, 4 Term R. 511; Tnttle v. Armstead, 53 Conn. 175, 22 Atl. 677; Grissell v. Robinson, 3 Bing. N. C. 10; Wells v. Porter, 7 Wend. (N. Y.) 119; Houser v. McGinnas, 10S N. C. 631, 13 S. E. 139; Hawley v. Beverley, 6 Man. & G. 221; Johnson v. Packet Co., L. R. 3 C. P. 38; Hales v. Freeman, 1 Brod. & B. 391; Hutzler v. Lord, 64 Md. 534, 3 Atl. 891; Turner v. Egerton, 1 Gill & J. (Md.) 430, 19 Am. Dec. 235; City of Baltimore v. Hughes, 1 Gill & J. (Md.) 4S0, 19 Am. Dec, 243; Iron City Tool-Works v. Long (Pa.) 7 Atl. 82; Beard v. Horton, 86 Ala. 202, 5 South. 207; Perin v. Parker, 25 I11. App. 465. See "Money Paid," Dec. Dig. (Key-No.) § 2; Cent. Dig. § 17; "Contracts," Cent. Dig. § 121.
22Kemp v. Fender, 12 Mees. & W. 421; Holmes v. Williamson, 6 Maule & S. 158; Davies v. Humphreys, 6 Mees. & W. 153; Deering v. Winchelsea, 2 Bos. & P. 270; Norton v. Coons, 6 N. Y. 33; Doremus v. Selden, 19 Johns. (N. Y.) 213; Tobias v. Rogers, 13 N. Y. 59; Johnson v. Harvey, 84 N. Y. 363, 38 Am. Rep. 515; Aldrich v. Aldrich, 56 Vt. 324, 48 Am. Rep. 791; Jackson v. Murray, 77 Tex. 644, 14 S. W. 235; Nickerson v. Wheeler, 118 Mass. 295; Wilton v. Tazwell, 86 I11. 29; Yates v. Donaldson, 5 Md. 3S9, 61 Am. Dec. 283; Sears v. Starbird, 78 Cal. 225, 20 Pac. 547; Fletcher v. Grover, 11 N. H. 368, 35 Am. Dec. 497; Foster v. Burton, 62 Vt. 239, 20 Atl. 326; Logan v. Trayser, 77 Wis. 579, 46 N. W. 877; Bushnell v. Busbnell, 77 Wis. 435, 46 N. W. 442, 9 L. R. A. 411. In some jurisdictions, contribution between cosureties must be enforced in equity. Longley v. Griggs, 10 Pick. (Mass.) 121; McDonald v. Magruder, 3 Pet. 470, 7 L. Ed. 744. And, where a surety has been compelled to pay the debt, he may, on the same principle, where there is no express contract with the principal (Touissaint v. Martinnant, 2 Term R. 100), recover the amount from his principal, as for money paid to his use. Alexander v. Vane, 1 Mees. & W. 511; Pownal v. Ferrand, 6 Barn. & C. 439; Crisfleld v. State, 55 Md. 192. As a rule, no right of contribution exists between joint wrongdoers. Merry weather v. Nixan, 8 Term R. 186; Boyer v. Bolender, 129 Pa. 324, 18 Atl. 127, 15 Am. St. Rep. 723. But the rule does not apply where one of them is innocent of any intentional or actual wrong, and has been compelled to pay damages which the other, who was the actual wrongdoer, should have paid. In such a case, on equitable principles, contribution may be enforced. Churchill v. Holt, 127 Mass. 165, 34 Am. Rep. 355; Farwell v. Becker, 129 I11. 261, 21 N. E. 792, 6 L. R. A. 400, 16 Am. St Rep. 267; Village of Port Jervis v. Bank, 96 N. Y. 550; Bailey v. Bussing, 28 Conn. 455. See "Principal and Surety," Dec. Dig. (Key-No.) § 194; Cent. Dig. §§ 605-623.
23Foster v. Ley, 2 Bing. N. C. 269; Bate v. Payne, 13 Q. B. 900; Hales v.
Another class of cases falling under this head are cases in which a person is compelled by the wrong or fraud of another to pay money to a third person. He may recover the amount from the person so guilty of the wrong or fraud.24 Where, for instance, a member of a firm gives a promissory note, signed in the partnership name, for a debt of his own, and his partner" is compelled to pay it, the latter may recover from the former as for money paid to his use;25 and where a carrier, by mistake, delivers goods to the wrong person, and he wrongfully detains them, so that the carrier is compelled to pay their value, he is liable to the carrier for the amount so paid.26
It must be remembered, as already stated, that it is not every payment on another's account that will make the latter liable. No implied promise to repay is raised where a person makes a payment voluntarily, and without any legal liability or compulsion, in discharge of the debt or liability of another;27 nor where he has been compelled to make the payment by his own wrongful act;28 nor where the payment is made in discharge of a liability which is a mere moral liability, and is not recognized in law;29 nor where a payment is made in discharge of another's liability by express agreement with the latter.30 It has further been held that, to entitle a person to recover from another money paid for
Freeman, 1 Brod. & B. 391. See "Money Paid," Dec. Dig. (Key-No.) § 1; Cent. Dig. §§ 1-16.
. 24 Bleaden v. Charles, 7 Bing. 246; Smith v. Cuff, 6 Maule & S. 160; Norton v. Riely, 11 Mees. & W. 492; Van Santen v. Oil Co., 81 N. Y. 171. See "Money Paid," Dec. Dig. (Key-No.) § 1; Cent. Dig. §§ 1-16.
25 Cross v. Cheshire, 7 Exch. 43. See "Money Paid," Dec. Dig. (Key-No.) § 1; Cent. Dig. §§ 1-16.
26 Brown v. Hodgson, 4 Taunt. 188. And see Long Champs v. Kenny. 1 Doug. 137. See "Money Paid," Dec. Dig. (Key-No.) § 1; Cent. Dig. §§ 1-16.
27 Bates v. Townley, 2 Exch. 152; Sleigh v. Sleigh, 5 Exch. 514. Payment of money by a person to procure the release of his property from seizure for another's debt does not impose any liability on the latter if the seizure was unlawful, or, rather, unless it is shown that it was lawful. Myers v. Smith, 27 Md. 91. See "Money Paid," Dec. Dig. (Key-No.) § 1; Cent. Dig. §§ 1-16.
28Pitcher v. Bailey, 8 East, 171. Where an officer, for instance, having custody of a prisoner for debt, suffered him to go at large, and, in consequence, was compelled to pay the creditor himself, it was held that ho could not recover the amount from the debtor. Pitcher v. Bailey, supra. See "Money Paid," Dec. Dig. (Key-No.) § 1; Cent. Dig. §§ 1-16.
29 Atkins v. Banwell, 2 East, 505. See "Money Paid," Dec. Dig. (Key-No.) i 7; Cent. Dig. §§ 1-16.
30 Action must be brought on the express agreement. Spencer v. Tarry, 8 Adol. & E. 331; Lubbock v. Tribe, 3 Mees. & W. 607. Sec "Money Paid." Dt ■ Dig. (Key-Wo.) § /; Cent. Dig. §§ 1-16.
the latter's use, there must be some privity between them. Legal liability incurred by one person on behalf of another, without any concurrence or privity on the part of the latter, will not entitle him to recover for money which, under such circumstances, he may pay to the latter's use. The liability must have been in some way cast upon him by the latter. The mere fact that he has paid, under compulsion of law, what the latter might have been compelled to pay, will give him no right of action against the latter. In an English case, the plaintiff, being entitled under a bill of sale to seize the defendant's goods, did so, but left the goods on the defendant's premises until rent fell due to the defendant's landlord. The landlord distrained the goods, whereupon the plaintiff paid the rent, and sued the defendant for the amount, as having been paid to his use. It was held that the facts gave the plaintiff no right of action. "Having seized the goods under the bill of sale," it was said, "they were his absolute property. He had a right to take them away; indeed, it was his duty to take them away. He probably left them on the premises for his own purposes. * * * At all events, they were not left there at the request, or for the benefit, of the defendant." 31
In all cases, to entitle the plaintiff to recover there must have been a payment, not necessarily of money, but of property at least, accepted as payment and in extinguishment of the claim. The giving of a bond or note, for instance, is not sufficient, for "the mere extinguishment of the original liability by way of new security will not avail." 32 It is otherwise, however, if land or other property is transferred absolutely as payment, and in extinguishment of the claim.33