| N.H. | Aug 5, 1877
It is quite immaterial to the purposes of this suit, in what light the various parties might be regarded by the holders of these notes, whether as successive indorsers or as original makers. The plaintiff seeks to recover of the defendant upon an independent contract. He claims to charge the defendant as a co-surety, not by force of any contract, expressed or implied, With the other indorsers, or the holders of the notes, but by virtue of a private understanding between himself and the defendant. So long as the rights of other persons are not affected, the plaintiff may set up this claim, and the true relation of the parties to each other may be investigated, and their rights and liabilities in that relation determined. As against this defendant, the plaintiff may prove the existence of a collateral contract, concerning which the notes and indorsements, however conclusive so far as the rights of third persons are concerned, may nevertheless, as between the parties to the collateral contract, be explained, controlled, or rebutted by extraneous evidence. Davis v. Barrington,
The parol evidence admitted on the trial, to show that the defendant understood he was a co-surety with the plaintiff, was competent. The equal interest of the parties in their sons' success, as manifested by their conduct, furnishes evidence for the consideration of the jury of an equitable relation between themselves as co-sureties, founded upon a contract, tacit or expressed. For such collateral agreement or understanding, a sufficient consideration exists in the agreement of the plaintiff to assume one half the risk if the defendant would become a co-surety with him and assume the other half, and the actual payment afterwards, by the plaintiff, of more than his equitable share. The agreement, not being in writing, stands free from the objection to parol evidence. Phillips v. Preston, 5 How. 291, 292; Davis v. Barrington, before cited.
Exception overruled.
DOE, C. J., did not sit.