| N.J. | Jun 15, 1854
The opinion of the court was delivered by
Jacob Apgar, in his life time, and Philip Hiler, the defendant in error, on the fourth of September, 1844, became parties to a promissory note in the following form:
“ One year after date, with interest, we, or either of us, promise to pay Tunis Melick, or order, the sum of seven hundred dollars, value received, without defalcation or discount.
(Signed) PETER R. FISHER.
Jacob Apgar Philip Hiler- Sureties.
In August term, 1846, Melick, the payee, recovered judgment in the Hunterdon circuit, against Fisher, Apgar and Hiler, the three makers of the note, for the amount due thereon, with costs. Part of the debt was paid by Fisher. The balance, (amounting, with costs, to five hundred and forty-nine dollars and eighty-eight cents,) was paid by Hiler. To recover the amount thus paid, action was brought.
Upon the trial of the cause it became a material enquiry, in what character, and for what purpose, Hiler became a party to the note. Whether Fisher and Apgar were the principal debtors and Hiler security — or whether Fisher was the principal debtor and Apgar and Hiler joint securities —or for whom, and in what precise character, Hiler became security.
Upon the face of the note, Apgar and Hiler appear as securities, and Fisher as the principal. In the absence of all extrinsic evidence, Apgar and Hiler would be regarded as co-securities, and if the debt were paid by either, he would be entitled as against his co-security to contribution.
But it was clearly competent for the plaintiff to show in what relation the several signers of the note stood to each
This the plaintiff on the (rial attempted to do. He called a Avitness, who testified that Hiler signed the note at Apgar’s request, that it was Apgar and Fisher’s note, that Apgar said it would be a great accommodation to them, and that Hiler should never pay one cent. The credibility of the Avitness Avas properly submitted to the jury. If the evidence Avas bolicA-ed, it showed either that Fisher and Apgar were the principal debtors, and Hiler alone the security; or, if Apgar Avas security for Fisher, still that Hiler signed, not as joint security Avith Apgar, and liable with him to contribution — but as security for Apgar also, lie stands to Hilar in the relation of principal to a surety. It is clear from the evidence that in any event Apgar Avas to stand betAveon ITiler and loss.
I. If the jury believed that the note was the debt of Fisher and Apgar, and that Hiler alone was security, he is entitled to recover from his principals the amount paid for their benefit. The action is properly brought against the administrators of Apgar. Whether the original note he joint or several, the liability of the principals to the surety is several. Each is liable for the whole amount.
If the surety is bound for several principals, he is entitled to proceed against each of Ihein for the recovery of the Avhole of Avhai lie has paid. E.idi of the principals is debtor of the AA'hole of the debt in favor of the creditor; and the
II. If, on the other hand, the jury believed that Fisher alone was the original debtor, and Apgar his security, but that Hiler became security, at Apgar’s request, and upon his promise of indemnity, still the plaintiff was entitled to recover in this action.
The evidence was not offered to show an independent contract of guaranty against loss — but simply the character in which Hiler became a party to the note. This, as has been shown, may be proved by parol.
For was the evidence offered to prove a promise by Apgar to pay the debt of a third person, and which must therefore be in writing. It was designed to show an original, equitable obligation on the part of Apgar to refund the money, growing out of the circumstances under which Hiler became a party to the instrument, and consequently liable to pay the debt.
In either aspect of the case the charge of the court was right, and if the jury believed the witness, the verdict, so far as this question is concerned, is clearly in accordance with law and equity. Whether the claim had been satisfied by Fisher, the principal debtor, or by Apgar in his life time, and what balance, if any, remained due, were questions peculiarly within the province of the jury, and are in no wise involved within the bills of exceptions. The whole charge of the judge is not before us, and this court cannot assume that he designed, by any casual remark upon this part of the case, to withdraw from the jury the control of questions of fact clearly within their province. The charge, properly considered, admits of no such interpretation.
III. It is insisted that the judgment should be re
It is true, that the judge charged the jury, that if they believed the testimony on the part of the plaintiff, the defendant was bound to pay the whole claim, and that this charge was assigned for error. But the controversy before the jury was, whether Apgar was liable for the whole debt, as principal, or merely liable as security to contribution' — and the charge of the judge manifestly had reference to that point. The question of liability for costs was not alluded to in the court below, either by court or by counsel — and that it was not referred to in the assignment of errors, is obvious from the printed statement of points designed to be relied on iu argument. The objection is there placed upon totally different grounds. . Viewing the matter in this aspect, the alleged error was not within the contemplation of court or counsel. It was not within the bill of exceptions, nor the assignments of errors, nor the points relied on. It was simply an error, in fact, committed by the jury in the amount of their verdict. They were not instructed by the court to allow the costs. If the jury erred, it is no ground of error, and this court can afford no relief.
But admitting that the allowance of costs was within the instructions of the court, and that the matter is properly within the bill of exceptions, there is no error in the charge. The action in which the costs wei:e incurred, was not against the surety alone, but was against him jointly with his principals. The principals were authorised and entitled to defend that suit if they saw fit. The security was not bound to forestal their action by paying the debt. .He was justified in permitting the plaintiff to proceed to judgment and execution, in the hope or expectation that the execution would have been satisfied out of their effects. He was guilty of no laches, and cannot be said to have incurred unnecessary costs, which in equity he is bound to pay.
Judgment accordingly.
For Affirmance — The Chancellor, The Chief Justice, and Judges Arrowsmith, Elmer, Haines, Ogden, Valentine, Wills, Cornelison, Huyler, and Risley — 11.
For Reversal — None.