Joslyn v. Eastman

| Vt. | Oct 15, 1873

The opinion of the court was delivered by

Rotcb, J.

The only exception that appears to'have been taken on the trial, was to the refusal of the court to charge that Locke was the principal in the note declared on, and that the defendant and Hall were co-sureties. It will bo seen by reference to the testimony, that it not only tended to show that Hall was the principal, but it was sufficient in amount, in the judgment of the jury, to justify them in finding the fact. So that it would have been error for the court to have complied with this request. The disputed questions of fact necessary to a determination of the legal rights of the parties, have been settled by the special verdict. In accordance with that verdict, Hall is to be regarded as the principal, and the defendant as his surety, and the plaintiff is chargeable with knowledge of this relation at the time the note was given. And the amount due upon the note at the time of its allowance by the commissioners on Hall’s estate, is conclusively settled by the acceptance of their report by the probate court. The important question is, whether the defendant can avail himself of the benefit of the tender which the jury have found was made to the plaintiff. The obligation of the surety being accessory to that of the principal, the surety could not be called upon as long as the principal had done all that could, be legally required of him in the performance of the contract. The tender which the jury have found was made, was legally sufficient, aud would have been available as a defence in any suit the plaintiff might have instituted seeking a recovery out of Lbo estate of Hall, and wo think it is equally available to the defendant. When a debtor tenders payment of the debt for which the surety is obligated, and the creditor declines to receive it, he thereby discharges the surety. The judgment of the county court is affirmed.