Administrator of Wilson v. Green

| Vt. | Apr 15, 1853

The opinion of the court was delivered by

Redfield, Ch. J.

The first question made in the case, is in regard to the admissions of the principal debtor being treated as evidence against the other defendants, who were in fact mere sureties. This point was virtually decided in Joslyn v. Smith, 13 Vt. 353" court="Vt." date_filed="1841-02-15" href="https://app.midpage.ai/document/joslyn-v-smith-6572481?utm_source=webapp" opinion_id="6572481">13 Vt. 353. For if admissions, by way of payments, made by the principal, are good to bind the surety, in regard to the statute of limitations, they must be good in other forms equally, and in regard to other points, as it seems to us. And the admissions were equally in regard to the matter of payment of the note. The only difference in the two cases, is in regard to the form of the payment, or the manner in which the admission is proposed to be used.

There is more difficulty, and more' uncertainty, in regard to the other point in the case. We think, upon the facts, as stated, it must be considered that the testimony tended to show, that the two last defendants were known to the plaintiff to he sureties, at the time of signing. And although it might have been the better rule;' to treat all who execute a note as jointly and severally holden alike, as really and to all intents joint principals, the same as if they had expressly so undertaken, still, the rule has been too long settled otherwise in this State, to be now brought in question. And sureties have constantly, for many years, been allowed to show their relation, and to be released from the obligation, on the ground of the creditor having, by a new contract with the principal, extended the time of payment. The rule seems to be otherwise in Connecticut. Bull v. Allen 19 Conn. 101" court="Conn." date_filed="1848-06-15" href="https://app.midpage.ai/document/bull-v-allen-6576109?utm_source=webapp" opinion_id="6576109">19 Conn. 101.

There is no doubt, too, we think, that had the creditor, in this case, expressly consented that the sureties should be made to believe the debt paid, and thus made to forego any advantage they would otherwise' have had, the sureties would have been released from the contract, in equity, and equally at law, if sued alone. The question then, is, whether the creditor, in the present case, must be regarded as impliedly consenting to what the principal should do with the note, which he intrusted to him.

We think, if the note had been given up to the principal for some honest purpose, as to enable him to make a disclosure, describing the note, and he had represented to the sureties that it was paid, and even torn off their names, or destroyed it, it would not have released them, if the creditor took the earliest opportunity to correct this misapprehension. Gordon v. Mc Carty, 3 Wharton, 407.

But when the creditor intrusts the note to the principal, for the express purpose of enabling him to perpetrate a fraud upon one person, justice and morality require that he should be responsible, if some other be made the victim. He ought not to complain of this. The rule of making one responsible for the acts of an agent in fraud, even beyond the person intended to be injured, is not new. An accessory to murder, before the fact, will be held liable, even though the person originally intended to be killed should escape, and another, towards whom no express malice had been conceived, should be destroyed by the same instrument. And in general, if one supply another with the means of perpetrating a fraud, in his name, against one person, and the fraud be perpetrated by the same means, but against other parties, he is to be held liable. This rule holds true as to all crimes, and we think equally as to all frauds.

And although the testimony was slight, in the present case, to show any imposition practised against the sureties, being only their own act, in taking part security for the notes; and omitting this, which is about equally well explained upon other grounds, we are inclined to think that point should be submitted to the jury, if it constitutes a full defence to the action at law, as against all the defendants.

This last point should, perhaps, be examined farther, unless the party chooses to proceed in equity, where such partial defence to the action is more properly cognizable.

1. It is nothing more than an estoppel in pais, and as such, is not more extensively operative, than a covenant never to sue one of two or more joint contractors, which is no defence to an action against all the signers, when sued jointly, but would be, when each is sued alone, as to the one in whose favor is the covenant. This is the view of the law distinctly laid down in all the English cases, as to covenants not to sue, and in Bull v. Allen, 19 Conn. 101, by Hinman, J., and in Baker v. Briggs, 8 Pick. 121, by Parker,, Ch. J.

2. It seems to us, that to hold it a bar to the whole action against all the contractors, is giving more effect than is just or tenable. The party is thus placed in an attitude, where he cannot know how to proceed, until he has experimented by an action. If he sue the principal alone, and secure his debt by attachment of property, he is liable to be defeated, by the defendant insisting upon the nonjoinder of the other defendants. And as he cannot take any advantage of this estoppel, unless the other party claim the benefit of it, which he will not be likely to do, if he can derive greater advantage, for the time, by waiving it, he cannot show any excuse for not joining the other defendants, where the contract is joint and not several. And if he do join all the contractors, he is liable to be defeated, and lose the benefit of an attachment against the principal alone, if the surety may defeat the whole action, by showing an estoppel in favor of himself alone. The recent statute will cure these inconveniences in future actions. But that does not apply to actions pending before the statute passed.

¥e must, therefore, hold the case farther upon this point, unless the party chooses to proceed in equity.

Judgment reversed, and new trial granted,