Hayden v. Rice

18 Vt. 353 | Vt. | 1846

The opinion of the court was delivered by

Kellogg, J.

Upon the trial of the case in the court below several exceptions were taken to the ruling of the court, which are how to be considered. It appears, that the plaintiff and defendant and one Sabin executed their joint promissory noté to the Bank of Woodstock, that the note was sued and judgment thereon recovered against all the signers, and that the plaintiff paid the amount of the judgment to the officer, who held for collection the execution, which issued thereon.

1. It is contended, that the county court erred in admitting parol evidence of the payment of the execution. This exception cannot be sustained. The execution of the note, by the plaintiff, the defendant and Sabin to the bank of Woodstock, the rendition of the judgment thereon and the issuing of the executions referred to in the case were neither questioned, or denied, but the matter in controversy between the parties was, whether the plaintiff had paid the amount of the execution ; and this fact, it is believed, might well be proved by parol testimony. Indeed, it may be questioned, whether the fact could be satisfactorily proved without a resort to parol evidence ; for a mere indorsement of the amount upon the execution, while it might be prima facie evidence of payment by the execution debtors, would not necessarily furnish evidence by which of them the payment was made.

Nor do we think it necessary, in order to entitle the plaintiff to recover, to prove that the amount paid was indorsed upon the execution. It is not the indorsement upon the execution, but the payment of it, which is the matter in controversy between the parties. It was undoubtedly incumbent upon the plaintiff to prove, that the payment, upon which he claimed to recover against the defendant, was a payment of the execution to one legally authorised to receive it; and this, we think, fully appears from the facts stated in the bill of exceptions. That it was not necessary to produce the execution upon the trial is fully established by the analogous case of Bayne v. Stone, 4 Esp. R. 13, in which case Lord Kenyon held parol testimony admissible, saying, “that although the written security was the foundation of the action, the immediate cause of action was money paid the defendant’s testator.” So in the case at bar, the foundation of the action is the note executed to the Bank of Woodstock, but the immediate cause of action is the payment of money by the plaintiff upon the note, or the judgment, in which the note was merged; and this might well be proved by parol testimony.

3. The next exception in the case, which is presented for consideration, arises upon the decision of the court, in admitting Bryant as a witness, who was offered by the plaintiff, and objected to by the defendant on the ground of interest. It appears, that the plaintiff made an assignment of this claim to Bryant and two others, that, previous to the assignment, Bryant, Hutchinson and Lyman, the assignees, had become sureties for Hayden, and that the assignment was made for the purpose of indemnifying them for their liability, thus previously incurred. To remove his interest Bryant executed to Hutchinson and Lyman, his co-assignees, a release of all his interest in the assignment; and the court adjudged this sufficient to remove his interest, and he was admitted as a witness.

It is still contended by the defendant, that Bryant remained interested, notwithstanding the release, inasmuch as he would be liable to Hammond, the assignee in bankruptcy, for the cost of this suit. The correctness of this proposition would be readily conceded, provided the fact of his liability for cost was established. Bryant is not a party of record, nor does it appear from any thing, which is before us, that he, or his co-assignees, procured Hammond to enter as prosecutor ; and if they did not so procure him, we do not perceive how they could be made liable to him for costs. But we think, upon an examination of the papers in the case, that we are justified in the belief, that Hammond must have entered as prosecutor at the request of Hayden, who was bound, by his deed of assignment, to prosecute the suit, or at his own suggestions, upon the belief of some supposed interest, which the creditors of Hayden, the bankrupt, might have in the suit; in neither of which events would Bryant, or his co-assignees, be liable to him for costs. We are therefore of opinion, that the exception cannot be sustained upon this ground. The facts in the case entirely fail to establish his liability for costs.

3. But it is farther insisted, that the introducing Hammond, the assignee in bankruptcy, as plaintiff of record operated a discontinuance of the suit.

No authorities are produced to sustain this objection, nor do we perceive, how the entry of Hammond can produce such a result. Hayden remains plaintiff upon the record, prosecuting the suit by Hammond, the assignee in bankruptcy. This entry has in no manner affected, or prejudiced, the rights of the parties. It cannot operate an injury to the defendant, that Hammond should be the trustee of Hayden’s assignees, or in any manner prejudice his defence. In the event that Hayden should otherwise indemnify and discharge his assignees from their liability incurred for him, and the assignment thereby become inoperative, Hammond would be properly prosecuting the suit and would hold the amount recovered for the benefit of the creditors of Hayden, the bankrupt. We are therefore satisfied with the ruling and charge of the court upon this part of the case.

But the question still remains, is not Bryant interested in the suit? He was objected to as a witness on the ground of interest generally. His release to his co-assignees of his interest in the property embraced in the assignment was doubtless supposed by the county court to remove his interest and render him competent. The conveyance, most certainly, was sufficient to transfer all his interest in the property assigned; but, on examining the assignment, we are inclined to believe, that it discloses a farther interest in him, which, without a farther discharge, still leaves him an incompetent witness. At the time the assignment was made, Bryant, Hutchinson and Lyman, as the sureties of Hayden, had incurred certain liabilities for him, which were then, and, for aught that appears, are still, outstanding. The assignment was made to indemnify them against those liabilities. If Hutchinson and Lyman should be made chargeable upon those liabilities, we do not see why Bryant, as their co-surety, would not be liable to them for contribution. If we are correct in this, Bryant, notwithstanding his release to his co-assignees had a direct interest in sustaining their claim, in order to reduce, or cancel, the liabilities, for which he was subject to contribution to Hutchinson and Lyman, his co-sureties. He was therefore an incompetent witness, and for this cause, the judgment of the county, court is reversed.