2 N.Y. 462 | NY | 1855
The language of the bond goes no further than to state the contract between the obligors and the obligee. If there was a cotemporaneous contract between the obligors respecting their rights, duties and obligations among themselves, in the event of their being made liable by the default of Leyden, that contract was not written out in terms, but was the judgment of law upon the fact of their becoming sureties. It follows that an agreement among the sureties arranging them eventual liability among themselves in a manner different from what the law would prescribe in the absence of an express agreement, would not contradict any of the terms of the bond. But the legal effect of a written contract is as much within the protection of the rule which forbids the introduction of parol evidence as its language. (Thompson v. Ketcham, 8 John., 190; La Farge v. Rickert, 5 Wend., 187; Creery v. Holly, 14 Wend., 26.) This is a valuable principle which we would be unwilling to draw in question ; but we think it is limited to the stipulations between the parties actually contracting with each other by the written instrument. For instance, none of the terms by which these obligors became bound to the corporation of New-York can be varied by parol evidence; and the construction which the law attaches to those stipulations is equally unalterable as the written language.
It has frequently been said that the liability to contribution between several co-sureties, depends upon principles of equity rather than upon the idea of. a contract of any kind among themselves. Hence it has been held that in cases where it appears that the several sureties were ignorant of the engagements of each other, and where, therefore, the possibility of a contract between them is repelled, they .are nevertheless liable to contribute. (Craythorne v. Swinburne, 14 Ves., 160; Norton v. Coons, 3 Denio, 130; S. C. on appeal, 2 Seld., 33; Campbell v. Mesier, 4 John. Ch. R., 337.) If the liability does not depend upon contract, the rule relied on by theícoünsel for the appellant has no applies,tion. There is a class of cases in which, for the purpose of the remedy, the courts have implied a contract between the co-stlreties cotemporaneous with the execution of the principal contract. It is upon that theory that the representatives of a deceased surety are held liable where the breach occurred after the death of their testator. (Bachelder v. Fisk, 17 Mass., 464; Bradley v. Burwell, 3 Denio, 61.) I think the contract is assumed for the purpose of enforcing the equitable principle of contribution, and not upon the idea that any such contract actually exists. The precise
The question whether the undertaking of O’Neil was one, which the statute of frauds required to be in writing, is more difficult than that which we have been considering. If the case be considered irrespective of the circumstance that O’Neil was also a surety in the bond, there are adjudications on both sides of the question. In Harrison v. Sawtel (10 John., 242), the plaintiff had become special bail for one Foot, at the request of the defendant and on his promise to indemnify him. The plaintiff having sustained damages on account of being bail, brought this action on the agreement, and it was held that the statute was not in his way : but then it appeared that the defendant was himself bound' to indemnify Foot, and that circumstance was relied on by the court. In Perley v. Spring (12 Mass., 297), a person in jail on civil process, placed in the hands of Spring property to enable him to procure bail. He procured Perley to be bail and promised to indemnify him. " In an action on this promise, the statute being relied on, it was held that it was
The cases where the person making the promise was himself bound for the default of the third person, are uniform in holding the contract to be unaffected by the statute. Thomas v. Cook (8 Barn. & Cress., 728) was a case in which the plaintiff and defendant both executed a bond to indemnify one Morris against certain copiartnership debts which the former partners of Morris had engaged to pay and to provide indemnity against, and the plaintiff signed the bond at the request of the defendant and on his promise to indemnify him, and the court of king’s bench, Bailey, J. and Parke, J. giving opinions, held that it was not a promise to answer for the debt, default or miscarriage of another person, and the plaintiff had judgment. This case was prior in time to Green v. Cresswell, and unless the distinction to which I have adverted is material, it is overruled by that case. On the argument of Green v. Cresswell, the plaintiff’s counsel alluded to this difference: “In Thomas v. Cook, he said, the defendant was himself liable upon the bond independently of the promise upon which he was sued.” Patterson, J., said: “It maybe said that the default there, w*as the default of the plaintiff himself in part.” Besides these sentences, the court in the latter case did not in terms notice this distinction, but disapproved of the ruling in Thomas v.
In the case before the court, the engagement of O’Neil to answer for the default of Leyden, was in writing. He was bound severally as well as jointly with McGloin and the other sureties. He was under no greater obligation to respond to the corporation for the defalcation of Leyden in consequence of the promise to O’Neil than he would have been if lie had made no such promise. Lord Denman’s objection to holding the promise good in Green v. Cresswell was that the statute might be evaded. “ Every promise, he said, to become answerable for the debt or default of another, may be shaped as an indemnity.” This reason certainly does" not apply where the indemnitor is otherwise bound in writing for the party whose default is to be provided against. I am of opinion that where a person is about M to become bound by writing to answer for the default of a third party, and he procures another to be bound with him in the same obligation by promising to indemnify him, that this is an original promise and not within this branch of the statute of frauds.
The agreement was satisfactorily proved, and upon the whole case I think the judgment of the supreme court ought to be affirmed.
The plaintiff Barry has no interest in this litigation, which originates in an order of reference the ascertain the rights of the defendants with respect to each other. The appellant is the administratrix of the estate of Felix O’Neil, deceased. This estate has paid an amount on a bond of John Leyden, signed by O’Neil, McGloin and others, as sureties of Leyden. The proof satisfied the referee that McGloin was the only solvent surety of whom the estate of O’Neil could obtain contribution. It also satisfied him that McGloin signed the bond at the special instance and request of .O’Neil, and on his express promise that he would indemnify and save him harmless from any loss in consequence of his becoming such surety. The court below has held that on these facts the defendant, McGloin, was not liable to contribute to the estate of O’Neil. The appellant, on the contrary, claims that it was error to allow the evidence of this request and agreement on the part of O’Neil, on the ground that it is admitting parol evidence to contradict a written contract; and also that if this request and agreement were properly proved, that the agreement was void as being a promise for the debt or default of a third person. Each of these positions are untenable.
.McGloin and O’Neil did not enter into a written agreement with each other, but with the obligee in the bond. As between the obligee and the obligors it would be no defence that an arrangement had been made between the parties to the instrument,, that some one or more of the obligors had agreed to pay in case of default of the principal, because the writing inter-partes is the evidence of the agreement. But as between the various sureties there is no written agreement, there is only an equitable presumption raised by the fact of payment, that the sureties ought to contribute equally for the default of the principal. This equity can be rebutted by parol. (10 Barb. R., 512; 6 ib., 199; Blake v. Cole, 22 Pick., 97.) As a test, to deter
It is unnecessary to examine the other question, viz: whether the agreement on the part of O’Neil was not void by the statute of frauds, because McGloin does not seek to recover anything on the agreement. The case now is as though O’Neil had proceeded and paid the amount of the default of Leyden and then sued McGloin. A party who has voluntarily performed an agreement void by the statute, can never sue and recover what he has paid under it. It is not now needful therefore to determine whether this is an agreement which would be valid and which McGrloin could enforce as against O’Neil, if he, McGrloin, had been compelled to pay anything as surety. It will be in time to decide that when the question arises.
The judgment should be affirmed.
Judgment affirmed.