Giltinan v. Strong

The opinion of the court was delivered, by Agnew, J. — The memorandum signed by David Giltinan for [245] the payment of the rent of the house in Strawberry street, related directly to the subject-matter of the action, and was not irrelevant. There being no special objection to its effect that became a matter of instruction of the court to the jury. Under the evidence, we cannot say the writing was not sufficient to support the action. The first count in the declaration charges a direct promise of the defendant to pay the rent, and there was evidence to go to the jury in support of it. The agent of Mrs. Strong testified that the defendant asked him whether there was a tenant in the house, and said he wanted it for a friend. Both Giltinan, the defendant, and Maguire, were together when the memorandum was signed at Mrs Strong’s. A few days afterwards Maguire went into possession, and Giltinan told the witness that he had put Maguire there; the evidence tended to show that the lease to Maguire was made at Giltinan’s request. The language of the paper is not inconsistent with a primary liability on the part of Giltinan: “ I hereby become surety for the rent of house in Strawberry St., at $1200 per annum, payable monthly from this date.” No person is named or referred to as the principal, nor is the rent stated to be that of another. The language 'can as well apply to a primary contract of Giltinan for a lease made at his request, as to a promise to pay the debt of another. Though the word surety is used, it is obvious from the absence of any other name or reference to the debt of any other person, that the writing is not necessarily a promise to pay the debt of another. It needs parol evidence to show that it is. The evidence of direct liability carried the writing properly to the jury. Arnold v. Stedman, 9 Wright 186, is sufficient authority for this; see also Paul v. Stackhouse, 2 Wright 305; Malone v. Keenan, 8 Id. 107. If parol evidence to prove consideration he needed, it can be adduced: Schively v. Black, 9 Id. 345. But we think the court erred in holding that the record of the judgment against Maguire was competent evidence against Giltinan. If the liability is direct and primary, it is clear this is so, and if the writing is viewed as a mere undertaking of suretyship, still it was error; Giltinan was no party to that action, had no notice to defend it, and could not be brought into defence of it by the plaintiff. The plaintiff’s remedy against him could he only on his own promise. A surety may give notice to his principal who owes him this duty to defend him, but it would be a novelty if the principal could call in his surety who owes no such duty, to defend him. Giltinan was therefore in no sense either a party ¡or privy to that action. Under the term parties (says Mr. Greenleaf, in his Law of Evidence, § 524), “ the law includes all who were directly interested in the subject-matter, and had a right to make defence or to control the proceeding, and to appeal from the judgment. The right involves also the right to adduce testi [246] mony, and to cross-examine the witnesses adduced on the other side. Persons not having these rights are regarded as strangers to the cause.” A surety in a separate and independent instrument is no party who could appear and control the separate action against his principal or appeal from the judgment. Nor is there a legal privity. Privity, says Mr. Greenleaf, § 189, denotes mutual or successive relationship to the same right of property. In none of the classes enumerated, as in estate, in blood, and in law, does the case of a surety fall in reference to a creditor’s action. It is the right to represent, which creates privity in law as between ancestor and heir, decedent and administrator, &c., but clearly the principal, in an action against himself alone, cannot represent his surety. If he could, then he could bind his surety for an extinguished or paid debt by a confession or a default. The privity of the surety with his principal is in the contract alone and not in the action. For the acts or omissions of the principal to which the surety pledges himself in his contract, he is bound, and it is only in this respect the principal represents his surety. This is the criterion of the competency of the principal’s declarations or admissions. Where these form a part of the acts or omissions of the principal for which the surety is bound, they constitute portions of the res gestee, and may be evidence against the surety. But beyond this line clearly the surety cannot be affected by the acts or admissions of his principal, for he is not represented by him: 1 Greenleaf’s Ev., § 187. The acts or omissions, or admissions of the principal in an action at law against himself, clearly do not represent the surety in any wise. The liability of the surety is only for the unpaid rent in this case. Now clearly, the principal cannot, by any act, admission or omission in such action, increase the surety’s liability beyond that extent. Nor are the interests of the principal and surety always identical. If the interest of the principal induce him to withdraw a payment made to the rent and apply it to another debt, the judgment against the principal would not represent the true balance against the surety. In the very case before us the payments proved would reduce the judgment against the principal more than one hundred dollars. If we analyze the judgment we discover that it cannot affect the surety. It speaks simply the voice of the evidence, and is but the determination of the tribunal of the result of the evidence. But clearly the principal does not rep*resent his surety in marshalling and controlling the evidence. His interest, we have seen, may be different from that of his surety, and induce him to withhold evidence to which the surety would be entitled. No argument can be drawn from the cases founded on official bonds, bonds of indemnity, &c. They arise from the terms of the bond, or terms of the indemnity, whereby the surety submits [247] himself to the acts of the principal and to the judgment, as itself a legal consequence, falling within the scope of the suretyship. Such are the cases of Masser v. Strickland, 17 S. & R. 354; Musselman v. Commonwealth, 7 Barr 240; Commonwealth v. Evans, 1 Watts 437; and others of similar character. The dissenting opinion of Gibson, J., in Masser v. Strickland, while ineffectual against the peculiar terms of a constable’s bond, is conclusive as an argument against the competency of the judgment as evidence in an ordinary case of suretyship. If we look for decisions more germane to the present case we shall find them in Cannuke v. Commonwealth, 5 Binn. 184; Moore’s Appeal, 10 Casey 411; see also 1 Greenleaf, §§ 522, 523, 524. We think the court erred, therefore, in admitting the judgment against Maguire as competent evidence against Giltinan, of the sum due upon the rent. Judgment reversed, and a venire de novo awarded.