Opinion
Argued April 19, 1878
Decided May 21, 1878
Dan'l Pratt, for appellant. W.E. Lansing, for respondent.
The Special Term ordered judgment for the defendant on the ground of a want of consideration for the defendant's contract as surety, and that it was invalid. If the second signing as surety was intended as a substitution for the contract of indorsement before made, that would furnish a sufficient consideration; but if the contract of indorsement was intended to remain, the subsequent signing as surety was without consideration, and the position of the General Term may be sustained. The case was disposed of at the circuit in a somewhat unusual manner. The case states that the court directed a verdict for the plaintiff, and reserved the cause for further consideration; that the plaintiff's counsel moved for judgment on the verdict, and the defendant's counsel moved for judgment in his favor on the evidence; that after argument and due deliberation the court ordered judgment for the defendant. In the minutes and in the opinion it is stated that the verdict was ordered subject to the opinion of the court. It was not a case for a verdict subject to the opinion of the court, because there were exceptions to evidence, and because the vital fact upon which the decision rests, viz., whether the second signing was intended as a substitution for the indorsement was not found or admitted, and besides a verdict so taken is subject to the opinion of the General Term. The proceeding may be regarded as a motion for a new trial upon the minutes, assuming that the parties consented that judgment should be ordered absolutely, and a new trial waived. As no exception was taken to the manner of disposing of the case, and no request made to submit any question to the jury, it is fair to infer that the parties intended that the judge should determine the whole issue, and render judgment accordingly. The judge found from the fact that the indorsement was not erased, that the second signing was not intended to be substituted as the contract between the parties, and hence that it was without consideration. Without questioning the correctness of the finding and conclusion of the learned judge, I think the judgment may be sustained upon the construction of the contract of suretyship, assuming that such contract was designed by the parties as a substitution for the contract of indorsement, and was therefore valid. It is conceded that the defendant was a surety, and the only question is who he was surety for. The note was brought to him signed by Brown Sayles and the plaintiff. The note was joint and several, and they appeared as joint makers on the note. The defendant indorsed the note in the first place, and as thus indorsed it was negotiated. In that position he was not a co-surety with the plaintiff, and if he had paid the note the plaintiff would have been liable to him for the full amount. It does not appear that he knew that the plaintiff was surety for Brown Sayles. He offered to prove that he did not know it, which was rejected. The plaintiff appeared on the note as principal, and the defendant regarded him as such, and assumed a contingent liability as surety for him as well as Brown Sayles, the other maker. When he changed the form of his contract he added the words "surety" to his name, and in view of the circumstances it is unreasonable to infer that he intended to change his legal relations to the plaintiff. Adding the word "surety" is indicative of a contrary intent, and I think his contract should be construed the same as if he had added "surety for the above names." The case would then be precisely within the principle of Harris v. Warner (13 Wend., 400). The plaintiff charges that the defendant was a co-surety with him, and he must show affirmatively that the defendant has placed himself in that relation. NELSON, J., in that case, said: "The defendant had a right to qualify his contract as he pleased, consistent with the rules of law." The word "surety" attached to defendant's name would indicate that he was surety for both the other signers, but it is not conclusive. It might be shown that he was in fact surety for only one, and that the other signer was also surety for the same one. This would show that they occupied the same relation to the principal, and hence were bound by the maxim that "equality is equity." ( Wells v. Miller, 66 N.Y., 255; Norton v. Coons, 2 Seld., 40.) But here the circumstances fairly show that the defendant intended to limit his liability by becoming surety for both, and the terms of the contract indicate a like intent. ( Sisson v. Barret, 2 Comstk., 406.)
The change in the form of the contract did not affect the plaintiff, and should not injure the defendant.
The judgment must be affirmed.
All concur.
Judgment affirmed.