Woodworth v. Bowes

| Ind. | Nov 27, 1854

Stuart, J.

Bill in chancery to enforce contribution among sureties.

Alden Bowes, the defendant in error, filed the bill. He alleges that one Case held a note for 321 dollars, in which the firm of Bowes and Noyes (composed of William Bowes and Edward Noyes) were principals, and Lewis Woodworth, John R. Boioes and Alden Bowes were co-sureties. That after judgment against all the parties and execution thereon, he, Alden Boioes, was compelled to pay the amount, with interest and costs. He therefore prays contribution, &c., from his alleged co-sureties, John JR. Bowes and Wood-worth.

John R. answers, alleging payment of his share to Alden before suit brought.

Woodworth answers, admitting the note, the parties to it, and the legal proceedings thereon, but not the payment of the judgment by Alden Bowes. He denies that John R. and Alden Bowes were his co-sureties as alleged in the bill, but insists and sets up that they, together with Bowes and Noyes, were principals,' and he, Woodworth, the sole surety for all the other parties. In support of this, he gives in detail the history of the note: that Bowes and Noyes owed Woodworth, for which' they gave their note, with Alden Bowes as surety. This note Woodworth sold and assigned to Case. To obtain further time, Bowes and Noyes proposed to give a new note, with John R. and Alden Bowes as their sureties. But Case declined giving up the old note, on which was Woodworth?s indorsement, unless the latter would also become a party to the new note. Accordingly, he signed it “Lewis Woodworth, as security;” and the old note was given up. On this new note, the Case judgment was recovered.

The evidence fully sustains the history thus given of the last note, and the parties to it.

The only question presented by counsel is, was Wood-worth the sole surety, and the other parties principals, as claimed in the answer? or were Bowes, Woodworth and Bowes co-sureties? The Court below took the latter view of it, and decreed contribution.

There is no brief filed for Alden Bowes.

We are referred in argument to only two reported cases, which are not accessible, and which counsel do not claim to have examined, further than the digest. The syllabus is thus: “ Where a party signs a note as surety for another, and a third person also affixes his name, adding ‘surety for the above,’ the first surety can not, upon payment of the note, compel contribution against the second surety, unless it is made satisfactorily to appear that the second surety intended to place himself in the relation of co-surety with the first.” 1 U. S. Digest Sup. p. 417, No. 39; and there the reference is to 4 Dev. and Batt. 404. The other case cited from the digest is 2 Halstead 71, and is equally inaccessible to the Court. Hence the necessity of the 29th rule ⁽¹⁾. The reason of the rule is, that the state has not furnished her Court of last resort with a law library; and we can not hazard decisions on the accuracy of digests. If counsel would avail themselves of the reports of other states, they must, under the rule, either furnish the report or an accurate copy of the decision cited. To both counsel-and Court the mere digest, in the absence of the report itself, is but a light to lead astray. A digest is no authority, and was never intended to be. Such compilations are simply useful in a law library to facilitate research. Beyond that they tend to impair the accuracy of judicial proceedings, and involve the reputation of both Court and counsel. Until the state, therefore, has furnished us the means of consulting authorities, the rule must be rigidly enforced.

Yet without the facts of the North Carolina and NewTersey cases before us, sufficient appears to distinguish them from this. For the word “surety” added to Wood-worth’s name, more easily and naturally refers to the real principals, Bowes and Noyes, than to all the parties as principals. As to this very debt, Bowes and Noyes were originally Woodworth's debtors. He knew the consideration passed directly from him to them. He knew that they were principals, Alden and John JR. Bowes sureties. H he meant to stand in any other relation than co-surety, he should have used apt words to designate his intended position. The word “surety” simply was not sufficiently definite for' that purpose. Whether he had signed his name with or without that word, was, in this instance, wholly immaterial. He was a co-surety either way. Even in the light of the references made, if he intended to treat all the other parties as principals, himself the sole surety, he should have added some such words as “ surety for the above.”

It seems that whenever several persons are sureties, bound for the discharge of the same duty, they stand in the relation of co-sureties, and are liable to contribution. Warner v. Price, 3 Wend. 397.—Breckenridge v. Taylor, 5 Dana 110. Nor will their becoming sureties at different times, without the knowledge of each other, or even by different instruments, affect their obligation.

There is a recent case in the New-York reports very similar to that at bar. There the note adduced in evidence reads: “ One year after date, we jointly and severally promise to pay to the order of Olive Eldridge, one thousand dollars,” &c. It was signed by Shryver and Aiken, R. and N. Norton, and J. H. Goons. Aiken & Co. were the principals, for whose benefit solely the loan was negotiated. The other parties were sureties. The Messrs. Norton were sued by the payee and compelled to pay the note, the principals being insolvent. And the Nortons sued Coons as their co-surety for contribution.

Coons offered to prove in defence, that the note to Miss Eldridge was signed by the Nortons at the request of Aiken Sf Co., as sureties, without any knowledge on the part of the Nortons that Coons was to be a party to it; that Miss Eldridge declined to take the note without Coons's signature; that the principals, Aiken Sf Co., represented the Nortons as responsible; that they only wanted his name to satisfy Miss Eldridge; and that upon these considerations he reluctantly signed the note.

J. B. Niles, for the plaintiff. J. W. Chapman, for the defendant.

Under the mode of practice peculiar to that state, the Court held these facts no defence, and excluded the evidence. In the Supreme Court, the motion for a new trial was overruled, and judgment was rendered on the verdict. The Court of Appeals affirmed the judgment, holding Coons to stand in the relation of co-surety and hable to contribution. Norton v. Coons, 2 Selden 33.

Nor is the authority of this case impaired by the dissent of Foot, justice. His dissent did not touch the main question. It related solely to a collateral point, as to the introduction of parol evidence.

We are therefore of opinion that Woodworth’s position was that of a co-surety, and that he is liable to contribute.

Per Curiam. — The decree is affirmed with costs.

(1) The rule referred to is as follows :

“The volume containing any case cited in a brief, must be placed within the reach of the Court, or the opinion in the case, or such part of it as is relied on, must be accurately copied, with the statement of the facts on which it is based, and so much of the context as forms a qualification of or exception to it.”