Artcher v. Douglass & Wickoff

By the Court, Beardsley, Ch. J. This action is founded on an obligation under seal, by which the defendants became bound to indemnify and save harmless the plaintiff, of and from all damages, costs and charges, which he had been or might be subjected or put to, by reason of having taken certain goods, wares and merchandises, under and by virtue of an attachment issued against one Corl. There is nothing on the face of the obligation to show that the persons bound were sureties for any one, and the only question which presents any difficulty is, can [512] they be allowed, at law, to prove that they executed the bond as sureties for Van Vliet, and thus let in a defence growing out of that relation. If such a defence is admissible, the referee erred, for he rejected evidence which was offered to establish it. The arrangement of the 16th of June, 1843, amounted to an accord and satisfaction of all claim to indemnity which the plaintiff had against Van Vliet, in addition to which a formal release of that claim was executed. If the defendants were sureties for Van Vliet, as was offered to be proved, he being bound to indemnify the plaintiff, the arrangement and release extinguished the liability of Van Vliet, and with it the accessory obligation of the defendants as his sureties. (Theob. Pr. and Surety, 3, 114, 115; Lewis v. Jones, 4 B. & C. 506; Hankshaw v. Parkins, 2 Swanst. 539.) There can be no doubt whatever that the arrangement and release constitute a perfect defence to the action if the defendants are permitted to show that they were sureties for Van Vliet. Their liability, however, was created by an obligation which does not disclose the fact that they were sureties, and the objection made is, that in such case the law will not permit them to allege and prove, by parol evidence, that they were sureties. This is urged on the ground that where both principal and surety unite in a joint obligation or agreement, which is silent as to the character of the parties, the surety cannot be allowed to show, at law, that he executed the obligation or entered into the agreement in that character. It must be admitted there are some authorities which countenance this position, and that, whether the obligation be created by a contract under seal or without a seal. (Pitm. on Pr. and Surety, 183, 4; The People v. Jansen, 7 John. 337 ; Rees v. Barrington, 2 Ves. jr. 542; Hunt v. The U. S., 1 Gal. 33; Sprigg v. The Bank of Mount Pleasant, 10 Pet. 266; Same v. Same, 14 id. 201; Ashbe v. Pidduck, 1 M. & W. 564; Pease v. Hirst, 10 Barn. & Cress. 122; Price v. Edmonds, id. 578.) But the authorities on this point are not harmonious, for there are several cases in which a defendant., sued with others on a joint contract, was allowed to show by parol evi [513] dence that he was surety for a co-defendant, and thus let in a defence founded on that relation. (Pain v. Packard, 13 John. 174; see also 17 id. 394; 21 Wend. 502; Pitm. on Surety, 183, (6); Hall v. Wilcox, 1 M. & Rob. 58; Adams v. Gregg, 2 Stark. 531; Thompson v. Clubley, 1 M. & W. 212; Chit on Bills, ed. of 1839, pp. 563, 449.) The reason for the rule excluding such evidence at law, when it is conceded to be admissible in equity, is hardly to be gathered from the books, and perhaps there is none better than the one glanced at in Baker v. Briggs, (8 Pick. 128,) that the surety having bound himself by a joint contract with his principal, shall not be allowed to set up a defence, peculiar to himself as surety, and which, in its nature, is wholly unavailable to the principal in the contract. We shall not enter into these vexed questions, for they are not involved in the case before us. Here the principal was not a party to the obligation on which this action was brought, both the obligors, as was offered to be proved, being sureties, and the defence if available to one is equally so to both the defendants. This case, .therefore, is not within the reason of the rule which is given by the court in Baker v. Briggs. No doubt the - accord and satisfaction, agreed to and accepted by the plaintiff, and the release executed by him, constitute a valid bar to any action on this bond, if the obligors were sureties for Van Vliet. That they were such might be shown in a court of equity, as all the authorities agree; and if the fact had appeared in the obligation, it is equally well settled that the defence would be available at law. The fact, when ascertained, if sufficient in equity, is equally valid as a legal defence. The doubt is as to the reception of parol evidence to prove the fact in a court of law. Perhaps that would not be allowed in an action on a joint obligation by the principal and his sureties. But I can discover no reason why it may not be done in this case, the principal not being a party to the obligation given by the defendants. I confine myself strictly to the case before us, which is not on a joint, contract by principal and sureties, but one ex [514] ecuted by the sureties alone. In such a case if the defence set up could be made any where, as it clearly could in a court of equity, it seems to me there is no solid objection to its admission in a court of law. I think the referee erred, and the report should be set aside. Motion granted.