49 Vt. 492 | Vt. | 1877
The opinion of the court was delivered by
The only question litigated upon the trial of this case in the County Court was, whether the defendant Thacher executed the notes in suit to the plaintiff as a principal, or as a surety or guarantor for the Richardsons, the other parties to the notes. It is conceded that the plaintiff had discharged the Richardsons by a compromise agreement on the receipt of a part of the debt, as was held in Paddleford v. Thacher, 48 Vt. 574. It was also held in that case, that such a discharge of the principals operated as a discharge of a known surety. Hence the materiality of the question, Was the defendant a surety and known
After the testimony in the case was all in at the trial below, the counsel for the defendant requested the court to direct a verdict for the defendant, on the ground that there was no evidence tending to show that the defendant signed the notes as principal. This, the court refused, and the defendant excepted. We think the County Court was right in this. The notes themselves furnish evidence that the defendant was a principal. His name appears upon the back of the notes, but it was placed there under circumstances that put him in the same position that he would have been in if ho had put his name upon the face of the notes, according to repeated decisions in this state.
The defendant also excepted to a portion of the charge. The court in submitting the case to the jury say: “ What was the transaction ? According to Brooks’s account and according to McCarty’s account, the trade was, that the Richardsons were to have these oxen upon giving their note with Thacher’s name to it. That was the trade according to Brooks’s account and according to McCarty’s account. * * * Well, he got the Richardsons’ note with Thacher’s name to it. * * * Now, the question is, In what character did Thachcr put his name there ? Was it as principal, or as surety ? If you look at the note alone, and nothing outside of it, he is there as principal, and not as surety, just as much as if he had written his name right down under Richard-sons’ — he is there as principal. Now, if he is there in any other capacity, it must be because it was agreed between the parties that he was to be there in that other capacity. Now, the question for you to settle upon the evidence is, Was it agreed — was it understood, between the parties that he was to be there in the character of surety, and not as principal. That is the question submitted to you in this branch of the case. If it was understood and agreed between the parties that he was to be there in the character of surety, then the plaintiff cannot recover in this case. If it was not understood that it was tobe there as surety, but-the understanding was that it was to be there as principal, then the plaintiff can recover.”
Ordinarily these circumstances determine the question whether a party whose name, with other's, is attached to a note, is a principal or a surety, both as between himself and his co-signers, and himself and the payee.
In this case all the testimony that was put in at the trial below, was made a part of the exceptions and is now before this court. There is nothing in it tending to show that a word was said by any of the parties as to the character in which the defendant was to sign these notes, whether as principal or surety, unless it be the testimony of Brooks and McCarty, that the understanding was between Brooks and the Richardsons that, if Brooks gave time, they were to get Thacher’s name on the notes. Thacher had no interest in nor connection with the transaction between- Brooks and Richardson, nor any knowledge of it until he was asked to sign the notes, and had no other connection with the transaction after-wards.
If the testimony of Brooks, McCarty, and Thacher is to be believed, there can hardly be a question but that Thacher put his name upon the notes as surety.for the Richardsons, and that Brooks had perfect knowledge of that relation; and if so, Brooks was bound to regard that relation in dealing with the Richardsons. But if these facts are laid out of the case, and the question is made to turn upon an agreement between the parties that the defendant is to- stand as a surety, the defense must of course fail, as nothing was said between the parties on the subject, and the case would stand upon the note alone, where the defendant is an apparent principal. As under the charge the jury had no alternative but must render a verdict for the .plaintiff,
Judgment reversed, and case remanded.
