Conger v. Chilcote
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Opinion of the Court
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Beck, J".
rThe following instruction requested by plaintiff was, after the modification shown therein, given to the jury: “If you find that Dr. Chilcote was one of the parties in interest (though his name was not used), in the case of Mt. Pleasant Bank against Conger, in which recovery was made against Conger on his bid, and you find that Cliilcote made no effort to prevent the prosecution of this case, then the judgment against Conger on the bid would be.conclusive against Chilcote, and Chilcote would be liable to pay whatever amount Conger had to-pay on that judgment. Modified by the court thus: This is true, but he must have been a party in interest, in the legal sense of the term. Ilis having in the contract assumed to pay to the Mt. Pleasant Bank the sum which said bank was entitled to under plaintiff’s bid for the land, did not make him such a party in interest as that he would be bound by the judgment, without notice having been given him of the pendency of the suit, and request made to defend, but-no particular form is needed for such notice or request. It is sufficient so that the same was fairly done and was so understood by the. defendant.”
i pABTVjudgmeut: notice. It is insisted that 'this instruction is erroneous in several respects. It is first claimed that it presents an incorrect rule law ^ holing defendant, on the ground of an }nterest in the suit, bound by the judgment rendered against plaintiff in favor of the Mt. Pleasant Bank. The instruction clearly announces the rule, that in order to hold defendant so bound, he must be found to have been a party in interest. In such case he would be bound though *24 his name were not used as a party to the action. We understand the instruction, so far, to mean this: if the action was prosecuted in whole or in part for defendant’s benefit, if he were to share in the fruits of the judgment, he is to be regarded as a party in interest, and, in thá,t case, is bound by the judgment rendered therein. -We think there can be no doubt of the correctness of tlie rule. If he had such an interest in the matter involved in the action, and entrusted it to the Mt. Pleasant Bank for settlement by suit, he will he estopped to deny the matters adjudicated therein. This conclusion is supported upon the consideration of-the relation' existing between defendant and the hank. The latter, in such case, would be the agent, of the former, with authority to prosecute the suit for his principal’s benefit. The principal certainly would be bound by that judgment.
On the other hand, defendant’s relation to plaintiff was such that it created in him a legal interest in the subject matter of the action. He was by contract with plaintiff bound to pay to the Mt. Pleasant Bank whatever sum it was entitled to recover from plaintiff on his bid for the land! Defendant’s interest in the action was double; it was on the side of both plaintiff and defendant therein.
II. It cannot be successfully urged, as is attempted by defendant’s counsel, that there was no evidence rendering this instruction applicable to the facts. A contract existed between the two banks to the effect that each should share in the benefits of any action brought by the other to foreclose the mortgage. This contract was in evidence. In all the transactions involved in the suit, defendant acted as the agent of the Washington Bank. This fact is pleaded by him and is abundantly proved by the evidence.
Defendant’s interest on the side of Conger, in the action by the Mt. Pleasant Bank, is shown by the contract between them above referred to.
Neither can it be claimed, in view of what we have just stated, that the verdict of the jury, if based upon the doctrine of this instruction, was unsupported by the evidence.
*25 III. It is urged that the instruction, in its language, was calculated to mislead the jury. This objection is based upon the expression occurring therein as follows, “ and you find that Chileote made no effort to prevent the prosecution of this case.” It is insisted that the jury understood, or may have understood, the case referred to as the case on trial, and not the one against Conger. A reading of the whole instruction would very plainly inform the jury that the expression referred to the last named case. Other criticisms of this character are made upon the language of the instruction. They demand no further attention.
__. _. -■ IT. Other instructions were given the jury upon the subject of notice to defendant of the pendency of the action against Conger, and request to defend, substantially repeating the rule announced in the latter part of the instruction above quoted as modified by the court. These instructions are correct, and, we believe, are not questioned by defendant’s counsel further than they insist that the notice and request should be in writing. They fail to support this position by authority, and, we are clearly of the opinion, it cannot be supported upon principle. The law requires the notice and request for the purpose of informing the party sought to be charged of the pendency of the suit, and that he is required to defend it. When this is accomplished nothing more is demanded. It may be as effectively done by oral communication as by writing.
g _. _• • W. It is urged by defendant that these instructions were inapplicable to the evidence, as there was no testimony tending to establish the notice and request. We think otherwise. That defendant had notice of the action is not disputed, he was present at the tidal and testified as a witness. It is shown that prior to the trial he had consultations with the plaintiff and his attorneys in regard to it, and that he furnished evidence to be used therein; he was informed by plaintiff’s attorney that he was liable to plaintiff, and admitted his liability. These facts are certainly evidence to establish notice, and are sufficient to raise a presumption that he was requested to defend the suit.
*26 YI. Yarious objections made in tbe argument of defendant’s counsel to the instructions, principally upon the ground that they are'misleading and contradictory, are based upon criticisms of their language. They are unsupported by argument, counsel contenting themselves with their bare statement. We do not think the instructions are objectionable on the grounds alleged; -when read together their purport is plain and their meaning easily understood. The objections demand no further attention.
YII. Much of counsel’s argument is devoted to the point that the Mt. Pleasant Bank was not entitled to recover in the action against Conger, and to questions connected therewith. It is not necessary that the point should receive attention in this opinion, As the case was presented to the jury, if they found that defendant was a party in interest in that suit, or notice of its pendency and request to defend were given to, and made upon, him, the judgment in that action they were to regard as binding upon him. This would preclude inquiry of matters involved in the action,
The foregoing discussion disposes of the case. It is our opinion that the judgment of the District Court ought to be
Affirmed.
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