Bowman's Administrators v. Kistler

| Pa. | Jul 1, 1859

The opinion of the court was delivered by

Woodward, J.

This action against the personal representatives of John D. Bowman, deceased, is founded on a promissory note, which he signed jointly with one John Eynon and Peter Bowman, to the plaintiff, for money loaned to Peter. The proof was, that the money was lent on the credit of John D. Bowman; and the jury have found that the other two drawers are insolvent. The creditor’s only chance of recovery, therefore, is against the estate of John D. Bowman, deceased; but as he was a surety, and only jointly bound with the others, it is insisted that, at law, his death terminated the creditor’s right of recourse to his estate.

. Long since, this rule of law has been relaxed in courts of equity, as against joint obligors who all participated in the loan, whether as partners or otherwise; so that if one of the borrowers should die, the creditor has a right to proceed against his estate, without recourse to the joint contractors, and without showing their insolvency: Story's Eq. Juris. § 163. As against deceased sureties, however, courts of equity refused to relax the rule of law, unless there was evidence that the parties intended to make the obligation joint and several, and made it only joint through mistake: Weaver v. Brotherton, 6 S. & R. 262.

How unreasonable this technical rule of law was, is shown by this case, as well as many others in the books. The plaintiff lent his money on the faith of John D. Bowman’s credit; and Bowman knew that. His promise to pay was absolute and unconditional. True, he may not have handled any of the money. As between him and his co-promissors, he may have been a mere surety; but without a pledge of his estate, the money would not have been loaned. It is one of the favourite maxims of the law, that where there is a right there is a remedy; but here, according to the strict rule of the common law, there would be a clear right without a remedy. The other promissors, whose credit the plaintiff did not trust, are insolvent — and therefore no remedy can be had against them. The promissor whom he did trust, is dead; and though his estate may be ample to make good all his promises, it shall not be touched by this creditor, because the decedent was only a surety, and not a principal debtor.

There never was any equity or natural justice in such a rule, and courts have felt it so sensibly, that they have seized hold of every circumstance to persuade themselves that the parties intended to make a joint and several contract, instead of a joint contract. Very few parties know the difference in the legal effect of these terms. It is not at all likely these parties knew it, or adverted to it, if they did know it. But they meant that the plaintiff should be repaid his money; and they did not mean that, if he indulged them till one of them should die, the only responsible one, his remedy should be gone for ever.

The legislature, seeing the injustice and hardship of this rule, as manifested in various cases, some of which are cited in the argument of the plaintiff’s counsel, passed the Act of 11th April 1848, in the same spirit in which they had passed the previous Act of 6th April 1830, “for the furtherance of justice between obligors and other creditors and debtors.”

The 3d section of the Act of 1848 provides, that “ where a judgment shall hereafter be obtained against two or more copartners, or joint or several obligors, or promissors, or contractors, the death of one or more of the defendants shall not discharge his or their estate or estates, real or personal, from the payment thereof; but the same shall be payable by his or their executors or administrators, as if the judgment had been several against the deceased alone.”

This section was probably suggested by the ruling in Stover v. Stroman, 9 W. & S. 85, where it was held, in 1845, that a scire facias would not lie against the personal representative of a deceased defendant in a joint judgment, although it may be suggested in the writ that a surviving defendant in the same judgment is utterly insolvent. The language of the enactment was accordingly limited to the case of a joint judgment.

But it is manifest, that what the legislature meant to remedy was the effect of the death of a joint obligor or promissor. They meant to change a technical rule of the common law, which never had regard to the substance of the contract, but only to the remedy upon it. The rule of remedy in such cases shall be changed, says the legislature, and even a joint judgment shall be treated as if joint and several. If a contract of several persons be joint and not several, a judgment therein against all of them is more essentially joint. Hence, when the legislature prescribe that such a judgment shall no longer be subject merely to the remedy of a joint judgment, but shall be proceeded in as if it were several, did they mean to leave the contract exposed to the old difficulties ? Did they mean to say to the creditor, — If you have sued your joint contract, and obtained a joint judgment, it is several, and the surety is bound the same as if he was a principal; but if you have forborne to sue, or having sued, have not obtained your judgment, the death of the surety releases his estate ? We think not. We think they meant rather to define the effect of the death of the surety upon the joint contract. That death might occur before suit, or pending the suit, or after the judgment, and remedial legislation, more wisely worded, would have expressly embraced all these contingencies, but the contingency selected is the one that implies the others. And as the death of a surety, after judgment, does not prevent pursuit of his estate, in the same manner as if the contract had been several, so a fortiori his death before or pending suit, shall not prevent such pursuit.

In Miller v. Reed, 3 Casey 244, we said, too perfunctorily perhaps, that these Acts of Assembly had obliterated all distinction, in Pennsylvania, between joint contracts and contracts joint and several, so far as regarded the remedy to enforce them; but, influenced by the remedial and highly beneficial character of this legislation, and following the principle of construction suggested by Chief Justice Gibson, in Brinker v. Brinker, 7 Barr 53, we say now, more carefully, that a case circumstanced like the present is within the spirit and reason of the Acts of Assembly, and the court below did well to apply them. We do not mean either, to throw any doubt on the correctness of the point ruled in Miller v. Reed, though we quite agree, that that case so differed from the present, that it is not necessarily a precedent.

Here the question is, upon the effect of the death of a co-promissor who stood as surety, the other promissors being insolvent; and we hold, it did not discharge his estate, any more than if it had occurred after judgment.

We do not think there is any ground for reversing, in the third error assigned. The court affirmed the doctrine of the defendant’s point, and stated the evidence as they understood it. If the court mistook the evidence, doubtless the jury corrected them. The payment of bonuses, without an agreement, would not impair the obligation of the contract, but they should be applied first to the interest, and then to the principal of the debt. Supposing they were so applied, we see no error in the record.

The judgment is affirmed.