Bowen v. Darby

RANDALL, C. J., delivered the opinion of the court. Before submitting this cause, the counsel for respondent; moved to dismiss the appeal upon the ground that a case or exception had not been made or notice thereof given to the ■respondent, or copy served, as required by the rules. On examination of the record, it appears to be made up in the usual form of a case and exceptions, containing the proceedings, including exceptions taken upon the trial, the instructions of the Judge to the jury, the verdict and finad judgment, the motion for a new trial and the order denying the motion, signed by the Judge, and exceptions thereto ales signed by him, all in consecutive order and in the appropriate form of. a case and exceptions duly settled and signed. It is true that it does not affirmatively appear that a copy of the case was served before being settled and signed by the Judge, by any express recital of the fact, but it must be presumed when a case and exceptions in proper form, duly signed by the Judge, appear in the record, that it was regularly done. We can presume nothing going to impeach ths regularity of the action of the Judge or court. Any irregularity in the making up of the record or judgment roll must be corrected in the court where, it is made, unless the defect be such that the correction may be mads upon a. suggestion of diminution of the record. We must consider it as we find it, and if it be imperfect the parties may employ an appropriate remedy. We have, therefore, declined to grant the motion to dismiss- the appeal. See — 214 — Hunt vs. Bloomber, 12 How. Pr. Rep., 567; 3 Kernan, 341. i The first point made by the appellant’s counsel is that the court erred in rejecting testimony offered by’deféridant to prove that the defendant was a surety of Dickinson, and in charging the jury thát such testimony was not to be received to prove such’ fact, and that no agreement to extend the time of payment will release or exonerate any of the'p'arties to this note. It is the settled law that where a payee or holder of a note or obligation, by a valid agreement, binding as between him and a principal debtor, agrees to give time for' payment beyond the time stipulated in'the original contract, without the consent of a surety of fhe principal, such agreement will release the surety. ' And a court of law as well as equity gives fhe same effect to the extension of "time by the creditor to fhe principal, and holds the surety discharged. This principle is not controverted'by counsel in this casé. To enable a surety to avail himself of this defence at law,J the instrument must on the face of it show that he is such surety; if he is bound as principal, he cannot at law aver by pleading that he he is bound as surety, though in equity parol evidence is admissible to show who is principal and who surety. Burge on Suretyship, 211; Rees vs. Berrington, 2 Ves., Jr., 540; 14 Ves., 160. The case of Sprigg vs. the Bank of Mount Pleasant, in the Supreme Court of the United States, (10 Peters, 257,) was a suit upon a bond executed by several persons, in" which they were all expressly named as principals. The action was at law. The court (Thompson, J.,) says : “ If the defendant can be (et in to set up that he was surety only, the matter alleged is sufficient to exonerate him from liability in the present suit. It falls within the settled" rule of law in rela. tion to sureties, that extending tó the principal further time of payment by a new agreement, will discharge fhe surety. It has been contended that it' appearing ex — 215 — pressly on the face of the bond that the-defendant acknowledged himself as principal, did not vary the question; for that all joint and several obligors in a bond are in judgment of law considered principal. This is true as a prima facie presumption of law; but is not conclusive upon, a party when drawn in question before a proper tribunal: But as matter of estoppel at law, it may stand on a different footing, and is, at all events, as matter of fact more conclusive. * * That a party has, by his own voluntary act, placed himself in a situation, as to mere matter of fact, that he is-precluded from denying it; * and it is a salutary- practical rule that a man shall not be permitted to deny what he has .solemnly acknowledged. In oi’dinary cases, when sureties .sign an instrument without any designation of the character in which they become bound, it may be reasonable to conclude that they undex'stood 'their liability was conditional, and attached only in default of payment by the principal. And hence the reasonableness of the xuxle of law which requires of the creditor that his conduct, with x’espect to his debtor, should be such- as not to enlarge the liability of the surety and make him responsible beyond what he understood he had bound himself. * * But admitting that, although the defendant has upon face of the obligation become bound as principal, yet a court of equity might allow him to set up that he was sxxrety only, and let him in to all the protections that are usually extended to sxxreties, the present case is to be governed by rules applicable to proceedings in courts of law.” It thus appears by the very -highest authorities in this country and in England, that the defence referred to may be made in, an action at law, where the fact that the defendant was a surety is' admitted or appears upon the face of the contract ; but where the contx’act discloses the fact that all the makers are principals, the defence can only be.made, or the. relief had in a court of eqxxity, wherever the distinction be — 216 — tween the-proceedings in courts of law and those in courts of equity exists. But the Code of Procedure of this State lias abolished all distinctions in the forms of action between legal and equitable remedies-, and section 101 of the'Code allows the defendant to set forth by answer as many defences and counter claims as he may have, whether they be such as have been heretofore denominated legal or equitable, or both. So that it was competent for the defendant to avail himself of the defence that he was a surety in fact, and that he had been discharged by the happening of any circumstance which would have availed him in a court of equity under the for-former practice. The court therefore erred in excluding the evidence sought to be given by. the defendant, and in instructing the jury that such defence would not avail him. The remaining question in this ease is whether the plaintiff is entitled to recover the “ currency” value of the gold coin, the value to be ascertained at the time the note became due, with interest. The note in suit became due November 1,1867, and the proof shows that the difference in the value of gold and “ currency” was about forty cents on the dollar. A computation of the amount due, upon this basis, allowing credit for the various payments shown by the receipts, demonstrates that the jury ascertained the amount by this rule, and found their verdict, accordingly, being about forty per cent, more than the amount actually due in coin. It has been suggested that gold coin is a merchantable commodity and that the standard of value now in this country is United States currency or “ greenbacks,” and whereas $100 in gold coin was in 1867 “ worth” $140 in currency,, and the difference now being 10 or 12 only, that therefore gold has fallen or depreciated. We think this is a mistake. Gold coin represents value as a standard; “ currency” represents credit or confidence. The paper promises of a government or an individual are the representatives of the credit of the government or person. The ability and disposition — 217 — to pay fixes the value to be estimated iu money. It would be absurd to say that the paper promises issued by a person or a bank formed the basis of the value of gold, and it is equally absurd to apply the doctrine to the paper of the government. In the present case, had the maker of .this note tendered, at the last moment, the amount due oil its face in gold coin with interest, it would have been a satisfaction, because it would have been a compliance with the promise just as fully as a tender of currency after the time of payment had arrived would be a compliance with a promise to pay currency. The judgment to be rendered should be a judgment enforcing the contract. The summons in this case notifies the defendant that the plaintiff', on failure to answer, will take judgment for $3,000 in gold coin, with interest. The complaint demands judgment for “ $3,000 in gold coin, with interest.” Thus the summons and complaint demand a specific fulfilment with the terms of the note, and this is perfectly legitimate. The judgment is for an amount in dollars forty per cent, greater than the amount demanded in dollars by the plaintiff. The Supreme Court of the United States, in three late-cases, has indicated the proper judgment to be given upon such contracts. In Bronson vs. Rhodes, 7 Wallace, 254, the court says: “ When contracts made payable in coin are sued upon, judgments may be entered for coined dollars and parts of'dollars; and when contracts have been made payable in dollars generally, without specifying in what description of currency payment is to be made, judgment may be entered generally without such specification. We have already adopted this rule as to judgments for duties, by affirming a. judgment of the Circuit Court for the District of California in favor of the United States for $1,388.10, payable in gold and silver coin, and judgment for express contracts between — 218 — individuals for the payment of coin may be entered in like manner.” This is the judgment of the same court in 3 Wallace, 320; Butler vs. Horwitz, 7 Wallace, 258; Dewry vs. Sears, 11 Wallace, 379. While this is the rule in the courts of the United States in common law actions, there is perhaps less doubt as to the propriety of entering a specific judgment following the terms of the contract, under our present Code of Procedure. We are therefore of the opinion that the ruling of the court in admitting testimony to show the “ value of gold ” at the time the note became due, and in directing the jury to compute the amount due in “ currency ” upon that basis, was incorrect. The judgment must, for the reasons herein stated, be reversed, and a new trial granted, with costs against the respondent.