Vaughn v. Rugg

The opinion of the court was delivered by Barrett, J. The word surety affixed to the name of the maker of a promissory note, does not show that he stands in such a relation to the transaction of giving it that he may not be liable to a recovery against himself on a common count for money had and received, or for money lent, or for money paid out. ' Hence, under those counts the note in the first instance would be admissible in evidence, and would warrant a judgment for the plaintiff. If the defendant would avoid the rendering of such judgment, he would need to show that in fact he did not have the-money, that it was [238] not lent to him, that it was not paid out at his request. That defence would go to the merits of his liability upon the cause set forth in the counts. The objection, as it is taken in this case, goes to the question of variance, on the ground that the note on its face showed a different cause of action from that set forth in the declaration. Without saying whether a surety can be recovered against under said counts, where it is shown in defence that in fact he did not have any of the money, that it was not lent to him, and was not paid out at his reqnest, it is clear that he might be recovered against under said counts where such defence was not maintained. It cannot be said, then, that the notes in these cases were not admissible in evidence as showing a prima-facie right of recovery under said counts. If so admissible, they constituted the cause of action for which the suit was brought, and a count declaring on them specially would be for the same cause of action. In this view, the allowing of the amendment would not be obnoxious to the objections made to it. This would be decisive against the defendant’s exceptions. It is proper to add that, under the views held by the court in the, cases cited from the 34 and 36 Vt. in which Judge Peck drew up the opinions, as applicable to the cases now in hand, the amendments were properly allowed. The exceptions, and the exhibits referred to show that the cause of action designed to be recovered for in the suit as brought, was the notes in question, and that the defendant so understood it. The object of the amendment was to avoid an alleged technical obstacle to a recovery under the common counts for his liability on the notes. It was the' same liability, whether enforceable under the common counts, or only enforceable under a special count. It differs from the case of Dewey v. Nicholas, 44 Vt. 24. In that case the subject-matter of the one count was not within the scope of the other. It was not a defective statement of an existing cause of action to be aided by an additional count; but it was stating a new cause of action that had not in any manner, defective or otherwise, been stated in the original declaration. The case of Downer v. Shaw, 3 Fost. N. H. 125, is.an instance of amendment, that illustrates the difference and. distinction just named. It was debt on judg [239] ment in Vermont on a note. Doubt arising as to the validity of the judgment as a cause of action, a count in debt upon the note was allowed to be added by way of amendment. If, after suit brought and entered in court,.it had been found that the plaintiff could recover on the judgment declared on, but that he had a note not embraced in the judgment on which he wanted to recover, it would not have been permissible tó add a new count on a note not embraced in the judgment. The discussion need not be further pursued. Judgment affirmed.