Marshall v. Aiken

The opinion of the court was delivered by Bennett, J. The two pleas in bar, which allege the giving of time to Daniel Aiken, without the knowledge or consent of the sureties, upon a good and valuable consideration, received of the principal, are clearly bad, in any event. • The consideration upon which an assumpsit is founded, must be set out in the declaration, that the court may see that it is a good and valuable one, or in other words, that it is legally sufficient. It is not for the pleader to do this. It is equally necessary, and for the same reason, that the consideration should be set out in these pleas. If the agreement to give time to the principal is not upon valuable considerations, it is no discharge to a surety. It is said in argument, that the demurrer admits a consideration; but a demurrer admits such facts only as are well pleaded. The first and second pleas are bad for this, if for no other reason. . The consideration for the promise set up in one of the remaining pleas, for giving time to the principal debtor, was the payment of the interest on the judgment in advance. It is a common principle, that the payment of a sum of money before it becomes due, is a sufficient consideration to sustain a promise. The payment of interest, which might accrue on the judgment, could not be enforced in advance, and the court cannot say that the consideration was inadequate, and therefore not binding. It is said in the old books, that even a pepper-corn is a sufficient consideration to support a promise. It must be left to the parties to make their own contracts. We have no doubt that a sufficient consideration is set forth in the remaining pleas. If there be any prejudice to the promisee, though trifling, it is a sufficient consideration. The consideration set out is, that if Daniel Aiken would buy of Downer certain prop [333] erty, at a given price, &c., and secure tlie payment thereof, by his note and mortgage, he would give time, &c. Here Daniel Aiken undertook to perform certain acts at the request of Downer; and the performance' of those acts, that is, the reception of the note, and the purchase of the property, and the giving his own note for the same, and mortgage, constitute a sufficient consideration, even without damage to the promissee; but if Aiken was induced to buy property of Downer at a price agreed upon, to gain time on the judgment, while he otherwise would not have bought, it may well be apprehended he suffered loss, though this may not necessarily appear from the record. The replication to these pleas is a general traverse, denying all the material facts, and to the replications, general and special demurrers have been filed, and among the causes assigned, are duplicity and multifariousness'. We think this is nota case in which the plaintiff can reply de injuria. The matter relied upon as a defence, is not matter of excuse ; but if it could avail the party, it would be matter in discharge of the obligation of these two defendants. The general rule is, that de injuria is only proper in cases where the matter traversed is matter of excuse. If this was a proper case for a general traverse, it would not be bad for duplicity or multifariousness, I apprehend.- The replication de injuria always puts in issue multifarious matter, and where it is allowable, it forms an exception to the general rules of pleading. In cases where the replication de injuria is allowable, the party may probably reply in that form, or traverse the material facts in the plea, in the terms in which they are alleged, at his election. If, in a case of this kind, the replication de injuria was to be allowed, the advantage to be gained by special pleading, which is to narrow the point of controversy between the parties, would, in a good measure, be lost. The grand object of special pleading is to narrow the point in dispute, and save costs to the litigant parties. The replication, then, upon principle, must be held bad; still it may be good enough for bad pleas. The question then arises, are the pleas sufficient to discharge the sureties in an action at law, from the judgment, going upon the ground that the agreements set up in them were made upon valuable consideration? This, no doubt, is a question, about which there may be, and has been, two opinions. The question with us' [334] Is, res integra, and we ai*e disposed to consider it upon principle. The judgment upon the note operated as a merger of the note, and we think at law, at least, it became so far conclusive upon the parties to it, as to exclude a defence growing out of the relation of principal and surety, existing between the defendants in the judgment prior to its recovery. It has frequently been said, that whatever will discharge a sure-, ty in equity, will discharge him at law; but I apprehend this is not always true. The court of equity was thepeculiar and original forum of the surety, and there can be no doubt, that in many cases, the surety has been held to be discharged at law, by the application of principles to the case, which were purely of an equitable character; and I apprehend, that upon principle, to produce a legal discharge of the surety, there must be á variation of the original contract, and a resulting waiver of its performance by the principal, founded upon an agreement for a valuable consideration; and that an ageement to vary it, not legally binding, is not sufficient at law, even if it can be made so in chancery. If the surety can insist, that the old contract has been waived, and a new one substituted between the creditor and the principal, without his consent, he may well stand upon the ground that he has made no such contract, as a surety. But if a declaration on the original contract against the principal could not be defeated by evidence of the alteration, it appears to me, upon principle, the same result must follow at law, where the action is against the principal and surety, and that if the action could be defeated as to the surety, it would also be defeated as to the principal. If the defence is a mdlity as to one, it must be so, on principle, as to both, at law; and in the case of Farmington v. Myers, 10 Ohio, 543, where the matter of defence was only good for the surety, it was thought necessary to turn the surety over to a court of equity for relief. In the case before us, it is not claimed that the matter of defence set up by the sureties was good for Daniel Aiken, and indeed the judgment was against him in the court below. It is established by many cases, that after judgment against a surety, his character, as surety, is at' an end, and he cannot, as against the creditor, any longer claim the privileges of a surety, and that it is then too late to inquire into the antecedent relations of the parties ; and this principle has sometimes been applied without any distinction, between [335] a defence at law, and cases in which relief has been sought by the surety in equity. It is quite possible, that a distinction may well be taken. It is maintained by the majority of the court in Nubbéll v. Carpenter, 5 Barb. 520, that there is a well grounded distinction, but this is not now a point before us. All that is necessary for us now to decide is, that the matter set up in bar of the action on the judgment eannot avail at law. Pole v. Ford, 2 Chit. R. 125.—Braine v. Monson, 8 M. & W. 668. Lenox v. Prout, 3 Wheaton, 520. Bay v. Tallmadge, 5 Johns. Chan. 305. Finsley's Executors v. Bank U. S., 2 McLane, 44. LaFarge v. Herton, 3 Denio, 157. Naylor v. Moody, 3 Blackford, (Indiana,) 93. Deberry v. Adams, 9 Yerger, (Tennessee,) 52. In the case of Bull v. Allen, 19 Conn. 101, it was held, that in the case of a joint and several promissory note, one of the signers was estopped from showing that he signed the note as surety, for the purpose of letting in a defence founded on the refusal of the holder to sue the principal. We are aware that in Massachusetts and in Pennsylvania their courts have held that the surety in no way ceases to retain the character of a surety, by reason of the demand having passed into judgment against the principal and surety. But it should be remembered that in those states, they have no courts with ordinary chancery powers, to which they could turn the surety over for relief, and how much that consideration might have weighed with the common law courts, in holding that the judgment was no merger of the relation of principal and surety with reference to the creditors, I cannot say. The reports of the cases do not, I believe, assign that as a reason for the decisions. We do not suppose that the judgment in any way affects the relation between the principal and surety. They stand as before, between themselves. On the whole, we think all the pleas in bar are bad, and the judgment of the County Court is reversed, and judgment against all the defendants for the amount due, and costs.