16 Mich. 66 | Mich. | 1867
We see no ground for the objection to the admission of the depositions. The amendment o£ the declaration after the depositions were taken, leaving out one of the defendant partners who had paid his portion of the debt and had been discharged, did not alter the substance of the issue as to any fact to which the depositions related — See Wright v. Tatham, 1 Ad. and El. 3; Medcalf v. Seccomb, 36 Me. 71; Goldsmith v.
Tbe second assignment of error raises tbe question whether the notes were properly admitted in evidence under the common counts against those parties only who remained defendants in the amended declaration.
Crouch having been shown to have been one of the partners when the notes were made, and his name appearing in the signature of the partnership name, this question will depend upon the effect of the release to Crouch. If that release was valid, and had the effect to release Crouch, leaving the other partners liable to their proportion of the joint debt, then the notes, after this proof had been given (if not before), were clearly admissible, and, in legal effect, they were, for the -balance remaining due upon them, the notes of the remaining defendants only. If there was any legal objection to their admission at the time they were introduced, that objection was removed by the defense introducing the release, if its effect was as above supposed.
• Did then this release, purporting to discharge Crouch only, operate as a release of one joint debtor at common law to discharge all the parties jointly liable, as claimed by the plaintiff in error, or was its effect restricted by any statute of New York or of this state, or by comity, so as to discharge Crouch only, leaving the other defendants jointly liable for their portion of the debt? This is the only remaining question.
The contracts (the two promissory notes) upon which the release was intended to operate, were made, and, by their terms, to be performed in the state of New York, and the release was executed there. The obligation created by the contracts, as well as the legal effect of the release, are therefore primarily to be determined by the laws of that state. See, as to the contracts, Story’s Confl. of Laws, § 242 to 248, 262 (a); Hyde v. Goodnow, 3 Comst. 269 ;
It is not denied that under the statute of New York “for the relief of partners and joint debtors,” Chapter 258, Laws of 1838 (2 Rev. Stat. ed. of 1852 p. 176), it was competent for the plaintiff to have executed a release to Crouch for his portion of the joint debt, without affecting the liability of the other partners for their proportion of the debt. But it is insisted by the plaintiff in error, that in order thus to restrict the effect of the release, it must refer to that statute, to show that it was executed under its provisions; and that the reference in the release to Chapter 157 instead of 158, is erroneous, the former chapter not referring to this subject.
In support of the proposition, that the release must contain a reference to the statute, we are referred to the following cases in New York. — Bronson v. Fitzhugh, 1 Hill, 185; Bank of Poughkeepsie v. Ibbotson, 5 Hill, 461; Hoffman v. Dunlop et al. 1 Barb. 185.
Though the courts in these cases do speak of the necessity of referring to the statute, yet upon a careful examination of the cases, we are satisfied the intention was only to declare that the release should appear to have been executed in such a case or under such a state of facts as would bring it within the class of cases intended to be provided for by the statute; and if this did not otherwise appear, the instrument should, at least, refer to the act, for the purpose of showing that it was executed under its authority.
Their statute (passed in 1838 and amended in 1845) seems to have been the original from which ours is substantially copied (so far as the present question is involved). It does not apply generally to all releases which may be executed to one partner or joint debtor. All its provisions, except those of the last section, apply directly only to the case of partners, and this not generally, but only when the partnership has been dissolved, and where there has been a
Hence there might be many other cases not coming within the statute, where a release to one joint debtor would be left to stand as at common law. The statute, it was said, did not appear to contemplate a technical release of one partner or joint debtor; and it would seem to be evident that the statute did not require such technical release, as it provides only for a “note or memorandum in writing.”
Now the releases brought in question in the New York cases above cited, seem to have been, in form, only the ordinary technical releases usually executed at common law without the recital of any facts bringing the cases to which they were intended to apply, within the class of cases provided for by the statute, and without even a reference to the statute.
There was therefore nothing to show that they were not, in fact, intended to be given as common law releases, and in cases to which the statute did not apply. Under these circumstances the court say that to give the releases the restrictive effect claimed, there should at least have been a reference to the statute to show that the parties were acting under its authority.
This was a public law, general in its operation, of which the courts were bound to take judicial notice. But they could not take judicial notice whether facts which did not appear, would bring the case within the statute. The best reference which can be made in such an instrument to a general public law, is to state a case which comes within its provisions.
The reference to the wrong chapter where the law was to be found, being wholly unnecessary, should therefore be treated as mere surplussage, or as having the same effect as if it had been “to the statute in such ease made and provided.”
The case does not call for an opinion upon the point, whether the release must show upon its face that it was executed under circumstances which would bring it within the law, as seems to have been held in New York, or whether these circumstances may be shown aliunde when the release is silent upon the point.
The allegation in the declaration that the settlement was made and the release executed under and by virtue of the provisions of act number 181 of the laws of 1859 (manifestly referring to our own statute upon this subject), was also entirely superfluous, and must be treated as surplussage. The release was set up by way of defense under the general issue; and though unnecessarily referred to in the declaration, was not introduced by the plaintiff. The defendants could only take advantage of the non-joinder of Crouch as á co-defendant by a plea in abatement.— 1 Chitty’s PI. 52, 53.
This release, then, having the effect in New York to release Crouch, leaving the other partners liable for their proportion of the joint indebtedness, it must have the same effect by comity in this state, unless to give it such effect would violate some fundamental law or the public policy of the state, or injuriously affect the rights of our own citizens. — Story’s Confl. of Laws, § 38, 348, 9; Commonwealth v. Bassford, 6 Hill, 526; Andrews v. Herriot, 4 Cow. 508 and note.
But as our own statute applicable to the facts (had they occurred here), is the same in effect upon this question as that of New York, there is no room for conflict.
