Joslyn v. Smith

13 Vt. 353 | Vt. | 1841

The"opinion of the court was delivered by

Redfield J.

The defendant signed this note as surety for one Otis Haven. There was testimony offered by the defendant to show that the plaintiff, by agreement with Haven, had from time to time delayed the collection of the note, without the knowledge of this defendant; but no testimony that such agreement was upon any consideration, or that Haven’s circumstances had in the mean time become changed, or his responsibility lessened.

We think this testimony was properly rejected by the court. Doubtless such agreement, made upon sufficient consideration, by which the creditor, without the knowledge of the surety, puts it out of his power to collect the debt, will release the surety. It changes his obligation. It puts it out of his power to compel a suit, even in equity. Hogaboom v. Herrick, 4 Vt. R. 137. King v. Baldwin, 2 Johns. Ch. R. 554. Any contract or agreement made between the creditor and principal debtor, for delay of payment, which for any cause is void, will not have the effect to release the surety.

There may be cases, where, by a naked agreement among all the parties, the creditor agrees to look solely to the principal, and the surety is thus induced to lie by until the principal becomes insolvent, where the surety will be released at law. But that is not the present case.

We are next called upon to decide whether the acts or admissions of one of two or more joint contractors are competent evidence to go to the jury, to remove the bar of the statute of limitations. That is most undoubtedly the result of the English cases up to the date of Lord Tenterden’s act, requiring all such admissions to be in writing. Whitcomb v. Whiting, Doug. 652. Jackson v. Fairbanks, 2 H. Bl. 340. There are many American cases of high authority, which seem not wholly reconcilable with this principle. Bell v. Morrison, 1 Peters, 351, is a very elaborate one, but resting mainly, as it should, upon the settled law of Kentucky, where the case originated. Any case decided in the United States supreme court, upon common law principles, can only be considered authority to show what the common law is, as it exists in the curcuit or state where the case originated. By statute that court are required so to expound the law. They cannot go beyond the law of the state where the case originated. Hence their adjudications can be considered of little more force, in expounding the common law, than those of the several state courts. The case of The Exeter Bank v. Sullivan, 6 N. H. R. 124, is much relied upon by the counsel for defendant. Ch. J. Richardson, in delivering the opinion of the court in that case, relies upon a distinction which is of little force under our decisions upon that subject. He says, “ The admission of one may prove there is a just debt which has not been paid,” but it has no tendency to show that the other signer “ is willing to pay it.” This is, surely, a very nice distinction. But, by our law, there is no necessity of any positive evidence of willingness to pay. If the debt is recognized as a just debt, and not paid, the law presumes willingness to pay, unless there is some protestation to the contrary. Olcott v. Scales, 4 Vt. R. 172. Barlow v. Bellomy, 7 Vt. R. 54. When, too, we are inquiring what is the common law of England, it is undeniable that the decisions of the courts of Westminster Hall are of much higher authority than those of any single state court. They are upon the ground, ad fontes legum, with aids at hand, which no American court can posse.ss. It is, however, but truth to say that very many of the American cases are better considered, and more elaborately argued, both by bench and bar, than most of the recent English cases.

Upon this subject, too, a plentiful number of the American cases, of the highest authority, coincide fully, upon this subject, with the cases first cited from the English Reports.—Bound & Sampson v. Lathrop, 4 Conn. 336. Smith v. Ludlow, 6 Johns. R. 267. In the latter case the admission was held sufficient, although made by one of the partners after the dissolution of the partnership, by way of stating an account, which, for general purposes, he could not then do in the name of the firm. The same rule obtains in Maine, Massachusetts, and Maryland. 7 Greenleaf, 26. 5 Harris & Gill, 60. 11 Pick. 400.

Upon principle, too, we think the admission of one joint contractor is competent evidence to go the jury^upon this subject. The statute of limitations, like any other defence, may be met and obviated by testimony. If the defence relied upon were payment, evidenced by a receipt for money, or if it were a release, either of the defences might be counteracted by showing the admissions of either of the joint contractors. There is no good reason why the same rule should not extend to this case. The act of each joint contractor is the act of all, on the ground of presumptive agency. It is true this agency may be expressly repudiated. So admissions made by one may be shown to have been merely collusive, or in bad faith, but these are questions to the jury. In the present case, there is no pretence that this defendant did not fully acquiesce in all the acts of Haven in making these payments. Shall he now be permitted to disown them ? We think not. If bound by them, and binding the plaintiff by them at the time they were made, and having lulled him into security thereby, he must be bound by them perpetually.

Judgment affirmed.