Leonard v. Trustees of the First Congregational Society in Taunton

Metcalf, J. It is not necessary to decide whether the letter of attorney, which is made part of the case, did or did not authorize Ezekiel B. Leonard to put George Leonard’s name to the note of December 1st, 1839. If it did so authorize him, there is no ground for disturbing the judgment now brought into review; and if it did not, yet we are of opinion that the judgment was properly rendered, and must be affirmed. ' Assuming that the second note was void as to George Leonard for want of authority in his attorney, the promisees were entitled to recover, on the count for money had and [464] received, the amount of the debt which was originally secured by the first note. That note was given for the joint and several debt of the promisors, and was not barred by the statute of limitations when the original action was commenced. Nor was the debt discharged or satisfied by the second note. The counsel on each side admit that both Ezekiel B. Leonard and the promisees supposed that he had authority to renew the note, and thereby bind George Leonard as well as himself. This mistake cannot impair the right of the promisees to recover judgment, on the original debt, against both the original promisors. A fortiori, this right would not have been impaired, if Ezekiel B. Leonard had acted fraudulently in placing George Leonard’s name on the note, knowing that he had no authority so to do. It is well settled, that when a sole debtor gives a new security which is void or is avoided, the creditor may sue him on the original contract. Johnson v. Johnson, 11 Mass. 359; Swartwout v. Payne, 19 Johns. 294; Siebbins v. Smith, 4 Pick. 97; Sutton v. Toomer, 7 Barn. & Ores. 416; Atkinson v. Hawdon, 2 Adolph. & Ellis, 628; Sloman v. Cox, 5 Tyrw. 174. The same principle is applicable to the present case. The second note was void as to one of the promisors, who was an original debtor, and the promisees never intended to discharge him and look to the other promisor alone. Though the second note bound Ezekiel B. Leonard, (2 Bos. & Pul. 338,) and the promisees might, if they had so elected, have recovered the amount thereof against him, yet, as they received it on the faith that it was the valid note of both, they were warranted in treating it as a nullity, and resorting to the original contract. They might well sue both their debtors on the second note, and show, if they could, that both were liable on it. But they might also rely on the original joint contract, if they failed to show a joint liability on the note, and recover on that contract, under the count for money had and received. A similar course was pursued in Sutton v. Toomer, before cited. Judgment affirmed.