Howard v. Johnson

Bleckley, Chief Justice. 1. The trial took place on a defence presented alone by the surety, the principal not defending; and the verdict rendered was in favor of the plaintiff against the principal only, and was silent as to the surety. This was iu accordance with the form of verdict which the court instructed the jury to bring in if they found the surety was discharged or not bound. No doubt, super-adding an express finding in favor of the surety would have made the verdict better in form; but in substantial legal effect the verdict was the same without this addition as it would have been with it. No one reading the whole record together, and intelligently construing it, would fail to understand that the jury considered the debt sued for as the several debt of the principal, and not as the joint debt of both defendants. The plaintiff claimed as against both'; one defended, the other did not; the jury found for the plaintiff as against the latter only; this was equivalent to finding against the plaintiff as to the former. The judgment declaring the surety discharged may have been irregular in form, but it was good in substance, for it declared judicially the legal effect of the finding. In this respect it was quite as efficacious as would have been a judgment that the surety recover of the plaintiff his costs, which, on the verdict rendered, would-have been good both inform and substance as a discharge of the surety. 2. It is now settled law in this State that concealed usury in a promissory note which contains a waiver of homestead or exemption, prevents a surety signing the [322] note with his principal from being bound by the instrument, provided he makes this defence in due time and proper manner. The defence cannot be evaded by any arrangement between the creditor and the principal,, purging the note of usury, the surety taking no part in the same and not assenting thereto. The purgation made or attempted in this instance was not only after the execution of the note, but after suit on it was brought. Most certainly a contract which was without obligation as to the surety when it was made could not be rendered obligatory upon him by something done after-wards without his concurrence or co-operation, and which he has never ratified or adopted. 8. Granting that the question propounded to Johnson, the surety, was leading, the allowance of it was not cause for a new trial. Such details in practice are generally subject to the discretion of the trial court. 'The objection to the answer to this question, that it was not matter of fact but was matter of opinion merely, is without any color of merit. There was no evidence showing or tending to show that the surety had any notice or knowledge of the usury when the note -was executed. The evidence showed he was ignorant of it. Judgment affirmed.