Beaman v. Blanchard, 4 Wend. 432

Beaman v. Blanchard

4 Wend. 432 | N.Y. Sup. Ct. | 1830

By the Court,

Sutherland, J.

The plaintiff was properly nonsuited. The evidence I think satisfactorily shews that the notés were made exclusively for the benefit of John Blanchard, and that Anthony Blanchard and Robertson, as well as the plaintiff, signed merely as sureties.

It appears from the testimony of Joseph Wells, that he originally applied to the plaintiff on the behalf of John Blanchard, to induce him to sign a note as surety, to enable Blanchard to get money at the Rutland bank. The witness saw the plaintiff and told him, John Blanchard wished to get *435#1000 from the Ruthland bank; that he could get Robertson and Anthony Blanchard to sign a note with him, and that he also wished to obtain the plaintiff’s signature. The plaintiff agreed to lend his responsibility for that purpose, if David Russel would indemnify him. This seems to have been the origin of the loan at the Ruthland bank, and the notes in question were given for the purpose of paying off the original loan, and the proceeds of the notes were so applied. There is no reason to suppose that the character in which Anthony Blanchard and Robertson signed the last notes was different from that in which the first were signed, or that the plaintiff supposed that they had any interest in the loan. In relation to the first notes, he was distinctly informed that John Blanchard wanted the money, and that he could get Anthony and Robertson to sign a note with him. The very form of the expression implied that they were to sign merely as sureties, not as principals. The plaintiff did not sign the notes upon the faith of their responsibility, for he insisted upon having the guarantee of Mr. Russell.

If Anthony Blanchard and Robertson were co-surities merely, with the plaintiff, then this action certainly cannot be maintained. They are individually, but not jointly liable for their respective proportions of the amount paid by the plaintiff. He must bring his action against each for his aliquot proportion. (Covell v. Edwards, 2 Bos. & Pull. 268.)

The indemnity exacted by the plaintiff from Mr. Russell, would not affect Ms right to recover in this action if the defendants had all been principals. Although he had collateral security, and might not have loaned Ms credit without it, still the money paid by Mm would have been paid in judgment of law'at the request and for the benefit of the defendants. The case of Toussaint v. Martinnant, (2 T. R. 100,) cited by the counsel for the defendant, does not apply; there the plaintiff, when he became bound as security with the defendant, took a bond from the defendant himself, conditioned for the payment of the debt to the plaintiff, for wMch he had become bound as surety with the defendant. Having been compelled to pay the debt, the plaintiff brought his action for money paid to Ms use against the defendant. The court *436held, that he could not sue upon the implied promise, inasmuc}2 as there was an express contract, and that under seal, to pay the same debt. But if the bond in that case had been given as a collateral guarantee by a third person, I apprehend the plaintiff would have found no difficulty in recovering against his principal, upon the implied propuse for money paid to his use.'

The plaintiff strictly, and in point of form, ought not to have been nonsuited, there being other defendants against whom he had obtained a default. But this course seems to have been adopted by consent of all parties upon the trial, and the plaintiff cannot now object to it.

Motion for new trial denied.