Briggs v. Boyd

Aldis, J. 1. Numerous decisions in this state have settled the point, that it is not a defence to the note for Boyd as surety, that the principal got it discounted by Austin instead of by the Bank of Orwell, as he had agreed with Boyd that he would. Bank of Newbury v. Richards, 35 Vt. 281; Bank of Middlebury v. Bingham, 38 Vt. 621. 2. Hyde did not sign the note as surety with Briggs and Boyd. The note was payable to Hyde or order, and they signed it as sure [539] ties with. Resseguie, knowing that Hyde was only to indorse it — not to sign it with them. The form of the' contract plainly shows the intent of the parties — that Hyde as payee and indorser was not surety with the signers, but would, if made liable by presentment, protest and notice, have a remedy against the makers. Such is the legal effect of the contract as written, and there is nothing in the case to show that the real relation of the parties was different. 3. The defendant had no notice of the suit, Austin v. Briggs, and therefore is not bound by the judgment. He may therefore show any legal defence which he might have pleaded in bar of a suit upon the note against him. 4. He offered to prove “a partial failure of consideration, by reason of certain property, which was received by Resseguie as a part of the consideration, proving to be worthless, and to the amount of three hundred dollars.” Could this defence of partial failure of consideration be legally pleaded to an action upon the note brought by Austin against the makers ? The general principle that a partial failure of consideration cannot be set up ás a defence pro tanto to an action on a note has often been affirmed in this state. Quite recent cases have recognized it. Burton v. Schermerhorn, 21 Vt. 289 ; Richardson v. Sanborn, 33 Vt. 75—Ch. J. Redfield; Harrington v. Lee, 33 Vt. 249—Judge Barrett. In these later cases the old and more general statement has been qualified thus — that a partial failure of consideration is not to be shown by way of defence in a suit upon a note, where the sum to be deducted “cannot be ascertained by computation” — (Barrett, J.) — , “is unliquidated, and subject to the estimation of the jury” — Red-t field, Ch. J. In the more recent case of Kelly v. Pember, 35 Vt. 183, Judge Peck remarks: “ There are some authorities to the effect that where the failure of consideration is partial, and of an uncertain character, and to be assessed by the jury and not mere matter of computation, such partial defence cannot be received in an action on a note ; and perhaps the cases in this state countenance or sustain that proposition. But I never could see why such defence ought not to be ah lowed in actions on notes and bills pf exchange as well as in other [540] actions, except where the suit on such paper is by an innocent holder for value. If there is such a rule there ought not to be; it is sustained by no principle of policy, convenience or justice.” These remarks indicate that the rule is far from meeting with the favor that seems once to have been extended to it in this state; but the case turned upon another point. It is unnecessary at this time to review the decisions in other states or in England. The tendency is to allow the defence to be set up as between the original parties. The cases are very conflicting. Byles on Bills, (Sharswood’s Notes,) p. 100, and Parsons on Notes and Bills, vol. 1, pp. 207 and 211, and notes and cases cited. We are not disposed at this time to overrule the decisions which have heretofore been made in this state upon this point. Had Briggs offered to show this defence in the suit brought by Austin against him upon the note, it would doubtless have been excluded. To allow it to Boyd in this suit at the expense of his co-surety, Briggs, when it would not have been allowed to Briggs in the suit Austin against him, would be doing a manifest injustice as between these sureties whose rights, liabilities and equities, are and ought to be preserved equal. The character of the testimony offered shows that the amount sought to be deducted could not have been the subject of computation ; but on the contrary must have been unliquidated damages to be shown by the opinions of witnesses, and ascertained by estimation of the jury. 5. It is claimed that the plaintiff ought not to recover for one-half of the taxable costs which he had to pay in the suit Austin against him. But this was a debt for which the plaintiff and defendant were jointly liable. Briggs was no more bound to pay the whole of it than Boyd. As between themselves each was to pay one-half. Had Boyd paid his half or offered to pay it before suit, there would then be ground for his saying that he ought not to contribute to the costs. But the costs were made in collecting the whoje of the note of Briggs. As one appears to have been just as much in fault as the other in not paying the note, which led to the necessity of making the costs, we think they should bear equally the burden of the costs. [541] In Fletcher et al. v. Jackson et al., 23 Vt. 593, the sureties recovered of their co-sureties not only a proportionate share of the taxable costs, but also of the expenses incurred in defending a suit. Where the setting up of the defence is reasonable, hopeful, prudent, — the expenses thereby incurred by a surety are held in that case to be a proper subject for contribution. To the same point is Marsh v. Harrington, 18 Vt. 150. The English decisions on this point do not seem to harmonize. In Kemp v. Finden, 12 M. & W. 421, Parke, Baron, held that in a suit on a debt, where the sureties by default of their principal were jointly liable, and one of them had paid the whole costs, he was entitled to recover of his co-surety his share. In 15 M. & W. 494, Alderson, B., seems to have been of a contrary opinion. The same rule obtains in Maine as in Vermont: 17 Me. 64; 18 Me. 364. But contra, 11 N. H. 431. There is nothing to indicate that the costs in this case which Briggs had to pay were enhanced by any neglect or default or unreasonable defence on his part. Judgment affirmed.