36 Vt. 400 | Vt. | 1863
The court instructed the jury that upon the legal effect of the evidence the defendants were co-sureties with the plaintiff upon the note. We must assume therefore that whatever the defendants’ evidence tended to prove was proved. The defendants’ evidence tended to show, that the defendants refused to sign the note as co-sureties with the plaintiff and Boynton ; but at the request of Mills, the principal and the maker of the note, consented to sign it as sureties for Adams and Boynton after he and they had signed it; that upon this understanding
It must therefore be regarded as a fact, that there was no concurrent or mutual understanding between the sureties that they were all to be co-sureties jointly for Mills ; but on the contrary that the Flanagans refused throughout the whole transaction to become co-sureties with Adams and Boynton, and insisfed in good faith that they would not sign till after Boynton and Adams had signed, and then only as sureties for them and not with' them. This fact excludes all those cases as precedents where a mutual understanding existed between the sureties that they should be co-sureties with each other.
It must further be considered as proved, that the defendants derived no benefit or advantage from Adams and Boynton signing as sureties. Adams and Boynton were already liable as sureties — the defendants were not. Mills wanted a renewal of the note. It was not for the benefit of the defendants that the 'note was to be renewed.
Neither did the defendants request Adams and Boynton to sign the new note. Nothing passed between the defendants and them on the subject, — nor did the defendants authorize Mills to carry any word, request or communication from them to Adams and Boynton. "Whatever Mills said to them he said without the knowledge or privity of the defendants ; not as from them or for them, but merely from himself, as a volunteer, upon his own credit and from his own notion. Hence there is nothing in this case to indicate that the defendants said or did anything to lead
Nor is there any thing to show that the defendants knew or had any suspicion, that Adams signed the note on the expectation that they would sign as co-sureties with him.
The case is bare of all imputation on the defendants of fraud, unfairness, negligence, or acts tending to mislead the plaintiff and to induce him to sign under any misapprehension of the liability which they were to assume.
It does however appear in the case that Mills, 'when he went to get the plaintiff to sign, falsely stated to him that the defendants would sign as co-sureties with him ; and thereby the plaintiff was in fact induced to sign the renewal note which otherwise he would not have signed. But as we have already said — this must be regarded as a volunteer falsehood of Mills, to which the defendants were not privy, have not contributed or given credit, and for which they are not in any way responsible.
The defendants acted in good faith, and must have supposed that Mills would either say nothing to Adams, or else would tell the truth. They could not have anticipated or prevented the falsehood. They knew nothing of this falsehood when they signed. It must also be understood that the defendants knew that Adams and Boynton were merely sureties for Mills.
The case then is this. Adams and Boynton sign as sureties upon the erroneous supposition (springing from the deceit of Mills and in no way imputable to the defendants) that the defendants would sign as co-sureties with them. The defendants in good faith, and without any knowledge of what the plaintiff supposed as to their signing, signed the note, when presented to them by Mills with the signatures of himself, Boynton and Adams attached to it, upon the distinct and express understanding with the principal, and with the payee, that they signed as sureties for Adams and Boynton and not as co-sureties with them. Do they thereby, by operation of law, become joint sureties with Adams.and Boynton and liable to contribution?
If they are liable it is not by virtue of an agreement to become so, or through silence in the execution of the note from which such an agreement could be implied ; but in spite of their express refusal to assume such liability, — such refusal known to the principal before he got the other sureties to sign, and accompanied with the express condition that the other sureties, who were then liable for debt, should sign first, and that the defendants would sign only as sureties for and not with them.
‘They were under no obligation to the principal or- sureties to sign the note. They might have changed the form in which they assumed their liability, so as to preclude all pretence of their being co-sureties with the plaintiff. They might have executed a separate instrument and thus have evidenced conclusively their intent, by a separate bond, or guaranty. Craythorne v. Swinbourne, 14 Ves. 160 ; Keith v. Goodwin, 31 Vt. 268.
The case last cited was of a guaranty on the back of the note.
So if they had appended to their names as signed to the note these words — “ sureties for the above signers” — this would have been sufficient evidence of their intention apparent upon the instrument. Such was the case of Harris v. Warner, 13 Wend. 400, and that decision is approved in Norton v. Coons, 3 Denio, 130, and same case in 6 N. Y. 33. But it is said by Ch. J. Bronson that “ if the last surety thus refuses to take the burden of a co-surety he renounces the benefit of that relation. If he will not contribute when the other surety pays the debt, he shall
It is urged by the plaintiff that as the defendants signed the note without annexing any such restriction to their liability, — as they thus appear on the face of the note as co-sureties with the plaintiff, they are bound by the form of the instrument, and cannot be permitted to show any different understanding or relation by parol. Is parol evidence admissible to show that the defendants signed not as co-sureties with the plaintiff, but with th e intent to be Sureties for him?
As between the makers and the payee the note excludes all parol evidence. It was made for the very purpose of being the proof, the sole and exclusive proof of the contract.
But as between the signers to it, it was not made or intended to be the exclusive proof of their agreement and relations. • It is well settled that it is open to parol evidence to show the true relations of the signers and the real nature of the contract between them.
The makers, though all appearing to be joint'principals, may be shown to be — some principals and some sureties. An apparent principal maybe shown to be .a surety — an apparent surety a principal. Harris v. Brooks, 21 Pick. 195 ; 23 Maine 156 ; Lapham v. Barnes 2 Vt. 220 ; Flint v. Day, 9 Vt. 345 ; Keith v. Goodwin, 31 Vt. 268 ; Robinson v. Lyle, 10 Barb. 512.
This rule as settled in this state is clearly and fully stated by the present Chief Justice in Lathrop v. Wilson, 30 Vt. 604: “ The word surety being added after the plaintiff’s name, and defendant’s name being first on the paper with no such addition, we think the legal presumption from the paper alone is that the plaintiff was principal and the defendant surety. But this was not by any means conclusive, and the real purpose and object of-the paper and the real relation of the parties might be shown, notwithstanding the addition of ‘ surety! to the plaintiff’s name.”
What is such proof but the proof of an “ extrinsic fact?” If parol evidence, is admissible to show that all are not joint principals when they appear to be, we think it equally admissible to show that all are not co-sureties when they so appear. The note is not made to show the contract and relations of its makers as between themselves ; hence as to them and their relations growing out of it parol proof is admissible..
In Norton v. Coons, Judge Gardiner seems to rest his opinion upon the ground that the evidence offered did not tend to prove the agreement claimed by defendant. Judge Foot dissented. In the opinion of the', supreme court in the same case, 3 Den. 130, we think the language of Ch. J. Bronson may be fairly interpreted as resting the case on the same ground as Judge* Gardiner.
Flint v. Day, 9 Vt. 345, is clearly an authority for the plaintiff. Upon the point applicable to this case we cannot but doubt whether it was well considered. It has been questioned since by some of the judges who participated in the decision—23 Vt. 164, 31 Vt. 276. Williams, Ch. J., in the decision, regards that case as coming within the principle of Lapham v. Barnes, in the 2d Vt.; but in that case there was no evidence to show that Hitt & Lapham were not co-sureties. He says the declaration made by Day, the co-surety, when he endorsed the note, was not made either to the principal or surety, and therefore could have no effect. This certainly recognizes the principle for for which the plaintiff here contends ; and if the suit had been
In the 1 L. Cas. in Eq. 68-72, many of the cases are collected, and are shown to recognise the principle which the defendants contend for. It is consistent with the natural right which every man has to make his own agreements. Its proper exercise injures no one’s rights. It harmonizes with established principles of law. In this respect, therefore, we seem the charge erroneous.
2. It is claimed that the depositions should have been excluded because the caption describes the defendants as “ H. C. and N. B. Flanagan.” This is not like the cases in 10 Vt. 282, and 17 Vt. 263, where the names of some of the defendants were wholly omitted, “ John Dean and others,” “ Seneca Smith and others.” Here the names appear and the only alleged error is that the Christian name is not set out in full, the initials only being prefixed to the surname. We are not disposed in mere matters of form to overlook errors that tend to uncertainty and confusion ; but we think it would be over-nice to exclude a deposition on this ground. It is hardly conceivable that the use of initial letters for Christian names in this -respect, can bring any practical mischiefs in its train. The decisions that the omission of an initial letter of a middle name is no defect, being an actual error in the description of the ñame, would seem to stand on more questionable ground. Yet it has long been so held in this state, and we know of no evil attendant upon the practice.
3. As the defendants declined to go to the jury on the question of the authority of H. C. Flanagan to sign the partnership name to the note, we must assume that all the facts referred to in the instructions of the court on this point are true. If the authority to sign the note was not intended to be limited to a twenty days note, if the difference in time was immeterial, so that when Noble C. Flanagan authorized H, C. to sign the note it was not
Judgment reversed.