Langdon v. Paul

| Vt. | Feb 15, 1848

The opinion of the court was delivered by

Hall, J.

It is objected, that the writing offered by the plaintiff ought not to have been admitted in evidence, without explanation of the interlineation, which appeared upon it. It may be remarked, that the interlineation has every appearance of having been made at the time of the original draft of the instrument. But it is a sufficient answer to this objection, that the interlineation is of words altogether immaterial, — that the legal effect of the instrument is precisely the same without the interlineation, as with it. Chitty on Bills 206. Hunt v. Adams, 6 Mass. 519" court="Mass." date_filed="1810-09-15" href="https://app.midpage.ai/document/hunt-v-adams-6403578?utm_source=webapp" opinion_id="6403578">6 Mass. 519. Nichols v. Johnson, 10 Conn. 192" court="Conn." date_filed="1834-06-15" href="https://app.midpage.ai/document/nichols-v-johnson-6574783?utm_source=webapp" opinion_id="6574783">10 Conn. 192.

It is farther objected, that the instrument produced by the plaintiff is to be.considered as a merger of the plaintiff’s cause of action on the notes, and that therefore the court should have instructed the jury to return a verdict for the defendant. It is undoubtedly a rule of law, that a simple contract security for a debt is extinguished by a specialty security for the same debt; and the reason given is, that the specialty is an instrument of a higher nature, and furnishes a better remedy than the demand before furnished. In Smith v. Higbee, 12 Vt. 113" court="Vt." date_filed="1840-01-15" href="https://app.midpage.ai/document/smith-v-higbee-6572286?utm_source=webapp" opinion_id="6572286">12 Vt. 113, it is said by the court, that “ when a new contract is of the same extent with a former contract, and of a higher nature, it will always supersede, or merge, the former; and that, if it be of a less extent than the former, it will depend upon the intention of the parties, whether it supersede it.”

There can be no doubt whatever in regard to the intent of the parties to this instrument. It was not designed to give the party an ^independent remedy for his debt; but its object most plainly was, to strengthen and keep alive the remedy upon the notes. It is not in the usual form of a contract with an individual, but is a general declaration of the signer of the notes, certifying, in substance, to all persons who were then, or might thereafter, become interested in the notes, that he would not plead the statute of limitations to them, but would remain liable for them to the same extent, as if the statute of limitations had not run upon them. It being apparent, that the whole object of the parties was to keep alive and strengthen the remedy on the notes, the question is, whether we are compelled by any stubborn rule of law to hold that the effect of the instrument shall be to defeat and overthrow that remedy.

In order to extinguish the former remedy, contrary to the apparent intent of the parties, the rule requires, that the remedy on the new security should be co-extensive with that on the old. On examination of this instrument it will be found, that it would furnish no absolute remedy for the debt secured by the notes. It is not an absolute promise to pay, either the debt, or the notes, but is only a promise to pay the notes, the same as though the statute had not run on them. It leaves open to the defendant any defence going to the original consideration of the notes. The new agreement could not be declared upon as absolute evidence of a liability. It furnished the party no independent remedy for his debt. The subject matter of it was not the plaintiff’s debt, but his notes; and it could only be used, as it was in this case, in aid of the remedy upon the former security. Besides, the old security was of a negotiable character; it might be transferred to and sued by any indorsee, and is now, in fact, sued by an indorsee. The new instrument is not negotiable ; it can be enforced only by the party to whom it was delivered; and yet, by the very terms of it, it was evidently designed to preserve a remedy to the indorsee of the notes. The remedy upon it could in no sense be said to be co-extensive with that upon the notes. It is clearly collateral to them, and does not, therefore, merge, or extinguish, the remedy upon them. Chitty on Cont. 762. 1 Smith’s Lead. Cas. 262. Bank of Columbia v. Adm’r of Patterson, 7 Cranch 299" court="SCOTUS" date_filed="1813-02-05" href="https://app.midpage.ai/document/the-bank-of-columbia-v-pattersons-admr-85003?utm_source=webapp" opinion_id="85003">7 Cranch 299. Twopenny v. Young, 3 B. & C. 208. Pring v. Clarkson, 1 B. & C. 14.

We do not perceive any force in the objection to the plaintiff’s recovery, arising out of the proceedings in chancery. The plaintiff, in his bill of foreclosure, must necessarily describe his mortgage given to secure these notes, with others; and in that description these notes would be included. But he was not obliged to foreclose for all his notes. He might withhold a part, and rely for their payment upon the defendant’s personal responsibility. These notes were not presented to the master on taking the account, and not included in the decree; and we see no objection to the plaintiff’s recovering them.

The judgment of the county court is affirmed.