12 Wend. 110 | N.Y. Sup. Ct. | 1834
By the Court,
The effect of entering a nolle prosequi as to the first count, is not so extensive in its bearing upon the rights of the parties as is supposed by the counsel for the plaintiff in error. The only operation of it, is to strike from the record that count and all the issues joined upon it; the residue of the issues remaining to be tried, the same as if no other had been formed. It will not be doubted that the plaintiff was not originally bound to declare as he did in the first count upon the note, and hence the propriety of allowing him to abandon the count, on paying the costs to which his adversary may have been put by means of it. The case of Hughes v. Moore, 7 Cranch, 176, relied on by the counsel for the plaintiff in error, when particularly examined, is not in contradiction to this doctrine, but in confirmation of it. There is an expression used by Chief Justice Marshall, which, as a general proposition, cannot be supported; but is correct, taken in connexion with other parts of the opinion, and should be so regarded, i. e., “ after this discontinuance (which was a nolle prosequi, as to one count,) the parties are in precisely the same situation as if all the issues, both of law and fact, which were joined upon that count, had been decided in favor of the defendant below.” Suppose the count thus discontinued had been upon a note, or other contract, which was competent evidence to sustain the common counts, it is clear that the in
The defendant was the first endorser, and if liable at all to the plaintiff, who was the second and an accommodation endorser, the count for money paid was the appropriate one under which to charge him.
The testimony in the bill of exceptions is decisive against • the defence set up under the statute of limitations. Soon after the note of $950 reached maturity it was taken up by the last endorsers, Weed & Doremus, and suits were brought upon it, and judgments recovered against each of the prior endorsers, Bartine & Keeler. Bartine, to relieve himself from the judgment, gave two notes, bearing date 2d November, 1820, payable in 6 and 12 months, for $270,54, which notes were paid at maturity. Now there is no pretence for saying that either of the endorsers were at any time discharged from their liabilities growing ouf of their endorsements of the note by lapse of time. Weed & Doremus were obliged to take it up, and they recovered a judgment against Bartine, who could relieve himself from it only by giving his notes and paying them. When could he have avoided this liability by setting up the statute of limitations ? And it is the obligation to pay as endorser, and payment, which entitles him to call upon the defendant Keeler, who stood behind him on the note, and which obligation is collateral to and independent of
The mutual arrangement between all the parties, by which each individual agreed to pay one fourth of the note, or rather judgment, against Bartine, without recourse, I am of opinion is void as to Bartine, for the want of a consideration to support it. That a consideration is necessary is not denied. The makers of the note, Seaman & Cooper, assumed the payment of one fourth; Keeler did the same, leaving a like sum to Bartine to pay. Now 1 admit, if either of these parties, Seaman & Cooper, or Keeler, were not bound to pay the judgment and indemnify Bartine, the new obligation assumed would constitute a good consideration for the promise of the latter not to call upon them, or either of them, to refund his share. If they were so bound, then the arrangement was but an agreement to pay a part of their own debt, and could afford no consideration for the agreement of Bartine.
It is said that the makers of the note and Keeler were discharged by the release to Seaman & Cooper, executed by the plaintiff, with others, bearing date 14th October, 1820. If it operated to discharge the makers, no doubt it would the en-doi’ser unless his implied assent to such dischai-ge from having signed it himself continued his obligation, for which there are some authorities. I put this case, however, upon the ground, that both upon principle and authority, the makers were not discharged by the release. At the time of the release the note was not due ; it was in the hands of the bank, or other holders who did not execute 'the release. They, therefore, who ever they wei’e, when the note became due, could call upon any of the parties to it. If they called upon the makers and compelled payment, thei’e is no pretence for saying they could have recourse to their own accommodation endorsers, which proves the existence of their liability upon it. If Ihe holders collected the amount from the endorsei's, there would seem to be no hardship in allowing them to have recourse to the makers. Aside from this, it is clear, upon adjudged cases, that the release did not operate to discharge the future contingent liability of the makers to the endorsers; and it must
But it is said Keeler paid a small portion of the costs of the judgment against Bartine, for which he was not legally holden as prior endorser, and that this afforded a sufficient consideration for his promise. The position of the counsel for the plaintiff in error, that his client was not responsible for any part of these costs, I think correct The makers were responsible, because Bartine, as to them, was an accommodation endorser. 4 Taunt. 464. 1 Gow. N. P. 113. 1 Chitty on Bills, Phil, ed. 147, 196, 415. 1 Phillip’s Ev. 47. But as regarded the rights and habilites of the endorsers in relation to one another, there is no difference between this note and one made and put into circulation in the usual course of business. 7 Johns.
Some of the cases already referred to are in point to show that the defendant, though an accommodation endorser, (and if it even should be conceded that the makers were insolvent when the note was drawn) can be charged only by regular demand and notice according to mercantile usage. 7 Johns. R. 362. 15 East, 216, 222. (n). Chitty, Phil. ed. 201, 246. 3 Barn. & Ald. 619. 7 Wendell, 169. It has always appeared to me singular that the law should ever have been
Upon the whole after a careful examination of the facts, J cannot resist the conclusion that the judgment in the court below is correct; on the grounds 1. That the statute of limitations has no application to the case; 2, That the deed of release of 14th October, 1814, did not operate to discharge the future contingent liability of the makers of the note to the endorsers, and of course did not discharge the defendant; 3. That the arrangement between the parties of the judgment against Bartine, in which Bartine agreed not to have recourse upon the makers or defendant, was inoperative for want of a consideration: 4. That the evidence was sufficient of due notice to Keeler of the dishonor of the note, or at least sufficient to be submitted to the jury. Nor am I able to perceive any hardship in the case as it regards the defendant, for beyond all question he has his remedy against the makers, and on paying the judgment of the plaintiff, will be entitled to resort to them. Being an accomodation .endorser as to them, he is in every sense their surety; and they most clearly have no ground of complaint on the score of justice. It was their debt.
J udgment affirmed.