Susong v. Vaiden

10 S.C. 247 | S.C. | 1878

The opinion of the Court was delivered by

McIver, A. J.

This was an action on a note, of which the following is a copy:

“$100. One day after date we promise to pay A. E. Susong one hundred dollars for value received.

“February 10, 1874.

“L. G. BISHOP.

“Witness: J. C. Hix.”

The defendant, Yaiden, did not appear, and, therefore, the plaintiff was entitled to judgment against him. The defense set up by the other defendant was that the note being a joint note, and L. G. Bishop having signed the same as surety merely, and not being liable for the debt except by reason of such signing, his estate, upon his death, was absolutely discharged, both in law and equity, and the survivor alone was liable.

The survivorship and insolvency of Yaiden, as well as the fact that the note was given for a debt due by Yaiden alone, Bishop being merely a surety, and having received no benefit from the consideration, were admitted. On the trial the Circuit Judge charged the jury that the note sued on was in effect a joint and several note, and that the verdict should' be for the plaintiff' against both defendants, to which charge the appellant excepted. It is obvious that this exception was well taken. We can see no ground whatever to warrant such a charge. — Story on Prom. Notes, § 57; 1 Story Eq. Jur., § 164. The note was, upon its face, plainly a joint and not a joint and several note, and there was no evidence whatever to show the contrary, even if such evidence were admissible under the state of the pleadings. The defendant, who is appellant, requested the Circuit Judge to charge that a note commencing “ we promise to pay ” is a joint note if signed by two or more. This the Circuit Judge charged, but added the words “ under certain circumstances,” to which qualifying words.appellant excepted. This also was error; for while there are cases which hold that in equity a note signed by a partnership, commencing “ we promise,” is in effect the joint and several note of the several partners, and while there are other cases which hold that an obligation in form joint may, in equity, be shown to have been so drawn by mistake, and that in fact the real intention was that it should be joint and several, yet there was nothing in this case to warrant any such instruction. For, in determining the correctness of any proposition of law given to the jury for their guidance, we must necessarily look to the circumstances of the case to determine whether it was right in the particular case submitted. We do not sit here for the purpose of determining mere abstract questions of law, but to decide whether the law, as applicable to a particular case made, has been correctly stated. Indeed, we think that the Circuit Judge practically reversed the rule of law, for, as we understand it, the rulé is that a note signed by two or more, commencing “we promise to pay,” is a joint note and not a joint and several note, but that, under certain circumstances, indicated above, such a note may be treated in equity as a joint and several note. The appellant also requested the Circuit Judge to charge that “upon the death of one of the makers of a joint promissory note, who was not liable for the debt irrespective of the joint obligation, but who signed the note simply as surety, his estate is absolutely discharged, both in law and equity and the survivors only are liable.”

The Judge charged in accordance with this request, but added “ that it had no application to this case,” to which additional words appellant excepted. In this also we think there was error. For if, as we have seen, the Court below erred in instructing the jury that the note, though in form joint, was in effect joint and several, then the proposition of law involved in this last mentioned request was not only directly applicable but might be conclusive of the case; because, if such proposition is well founded, then the verdict should have been in favor of the defendant, Bishop. It becomes necessary, then, for us to consider and determine whether such proposition can be maintained; and indeed this was the only question argued here. It must be admitted that this proposition is fully sustained by the authorities outside of this State, a full and fair statement of which will be found in.appellant’s brief; but, on the other hand, the authorities in this State are to the contrary.—Shubrick vs. Livingston, 1 DeS., 322; Lainhardt vs. Reilly, 3 DeS., 591; Smith vs. Martin, 4 DeS., 151.

These cases distinctly hold that upon the death of one of two or more obligors who was a mere surety, while his estate is discharged at law, it is not in equity. This proposition, while not distinctly decided, inasmuch as the direct question did not arise, seems to have met the approbation of Nott, J., in Fescot vs. Smith, (1 McC. Ch., 304,) and of Cheves, J., in Ayer vs. Buford, 2 M. Con. Rep., 321. It is very true that Harper, Ch., in Pride vs. Boyce, (Rice Eq., 288,) does say that “ upon an examination of the cases they seem to me to establish a rule of this sort: that if the joint obligation be created merely by the bond or covenant, where there was no previous liability, in that case no relief will be afforded against the estate of the deceased obligor in the event of the insolvency of the survivor. But if there was an antecedent debt to which both parties were liable, as in the case of partners, then the Court infers without direct proof that the instrument vyas made joint by mistake, and relieves accordingly, by setting it up as a joint and several bond; and on a still stronger equity it should seem that where there was an antecedent debt to which the deceased obligor was solely liable, would the Court set it up as his several debt, in favor of the obligee, where the surviving obligor proves insolvent ?” This, however, so far as it states the rule as contended for by appellant, was a mere dictum, for the question in Pride vs. Boyce was whether the assets of McCauley’s estate could be applied to the payment of a joint note signed by McCauley as principal and Pride as surety, and it was held that they could. Indeed, it can scarcely be called a dictumL of that distinguished Chancellor, for it will be observed that he does not state the rule as one which he approves, but merely as one established by the cases; and an examination of his opinion shows that the cases from which he deduced this rule are all English cases, and he does not mention or refer to a single one of the eases in our State above cited.

It is argued, however, that the decisions in this State which establish the contrary of the proposition contended for by appellant are all cases on bonds in which the obligors, in terms, bind not only themselves but also their heirs, executors and administrators, while the case now under consideration is an action on a promissory note, by which the makers do not, in terms, bind their heirs, executors and administrators. This is true so far as the form of words go, but in substance and effect the obligation, so far as this point is concerned, is the same under a promissory note as under a bond. In a bond the obligor binds specifically his heirs, executors and administrators, while in a promissory note he does not. But in the case of a bond the obligee can only enforce the obligation as against the heir to the. extent of the value of the land of the obligor which may have descended to him, and as against the executor or administrator to the extent of the value of the assets of the obligor which have or ought to have come into his hands, and this he can in the case of a promissory note. So that we are at a loss to perceive the practical difference in this repeat. We do not, therefore, think that the decisions in this State should be confined to actions on bonds. The Court evidently did not rest their decisions upon any such ground, for, while that circumstance was adverted to in two of the cases, it is not even mentioned in the third.

Again, it has been urged that in order to bring the law in this State into conformity with the law as declared in other States in the Union, as well as by the Supreme Court of the United States, these decisions should be overruled. To this proposition we have given that careful attention which its gravity demands; but, after mature and deliberate consideration, we are unable to give our concurrence to the rule as established elsewhere, and, therefore, we see no reason for disturbing the rule as established by our own decisions. It seems to us that the rule contended for by the.appellant had its origin in and rests entirely upon strictly technical doctrines incident to the common law rules of pleading, which are now no longer of force in this State. We are unable to perceive any good ground growing out of the nature of the rights and duties incident to a joint contract upon which it can rest, though we can readily perceive how it grew up, from the nature of the remedies provided, by the old rules of the pleading. By those rules it was not allowable to bring a joint action at law against a living obligor and the representatives of a deceased co-obligor, for the reason only that the. judgment against the survivor would be de bonis propriis, while, that against the representatives would be de bonis testatoris, and the common law did, not tolerate a double judgment in one action. That this was purely technical, and that there was no inherent difficulty in the way, is conclusively shown by the practice of the Court of Equity, and by the practice under the Code of Procedure, under which such judgments have been and are in constant use. By another rule of that system of pleading it was required that where an action was brought upon a joint contract it was necessary that all the living co-contractors should be joined in the action.

These rules lead legitimately to the conclusion that in ease of the death of one of two or more joint contractors his representatives were absolutely discharged from any action at law. Then, by the aid of the equity doctrine, — that where a surety is not bound at law he will not be made liable in equity, — the conclusion was reached that upon the death of one of two or more joint obligors, who is liable only as a surety, his estate is absolutely discharged both at law and in equity. The fault of this reasoning, as it seems to us, is to be found in the fact that the distinction between being discharged from suit at law and being discharged from the obligation to perform the contract is lost sight of. There is no difficulty in understanding how, under the common law rules of pleading, the estate of the deceased co-obligor could not be pursued in an action at law, and how it could be properly said that such estate was discharged from such action; but it is not only difficult but absolutely impossible for us to understand how the death of the party can discharge his estate from his obligation to fulfill his contract. The remedy at law may have been gone because of the want of proper machinery in that Court to put it into practical operation, but the duty to perform the contract still remains — the obligation is not discharged. There is nothing in the nature of the rights and duties growing out of joint contracts which warrants the conclusion that the death of one of the co-contractors destroys the right or discharges the obligation which grows out of such contracts. It is said that the surety by signing a joint contract incurs a joint liability and no other. If this be true, carried to its legitimate result, it would necessarily lead to the conclusion that when a joint judgment is recovered upon a joint contract, against two or more obligors, their joint property could alone be made liable, whereas we know the contrary to be well established law, and that the judgment in such a case may be enforced as well against the separate property of either of the co-obligors as against their joint property. We do not think, therefore, that the authorities which have been relied upon as sustaining the proposition contended for by the appellant rest upon a satisfactory foundation, and we are unwilling to overrule the decisions in this State establishing the contrary. Indeed, since the adoption of the Code of Procedure, which, in conformity to the requirement of the Constitution, has provided that justice shall be administered in a uniform mode of pleading without distinction between law and equity, we can see no reason why the representatives of a deceased co-obligor, who was a mere surety, may not be joined with the surviving obligor in an action upon a joint bond or note, as in this case.

While, therefore, as we have seen, errors were committed by the Circuit Judge in his charge to the jury, we do not regard such errors as material in this case; for upon the principles herein established the verdict should have been as it was, and we do not, therefore, feel called upon to disturb it because of errors which could not change the result of the case. For as the case made depended exclusively upon the question of law above determined, it was the duty of the Circuit Judge to have instructed the jury to find for the plaintiff against both of the defendants; and although the reasons assigned by the Circuit Judge for such instruction are not well founded in law, yet as the instruction was right in itself it must be sustained.

The judgment of the Circuit Court is affirmed.

Willard, C. J., and Haskell, A. J., concurred.