Benedict v. Cox

The opinion of the court was delivered by Redfield, J. I. The note offered in evidence was joint and several, and recited that “ each as principal ” signed the note; and although, as between themselves, one was principal and the other surety, so far as the creditor is concerned both are principals. Claremont Bank v. Wood, 10 Vt. 582. This case has ever been recognized as authority. The remarks of Bennett, J., in People's Bank v. Pearsons, 30 Vt. 711, were not intended to impugn its soundness ; but, on the contrary, it was expressly affirmed. And we think the profession would be reluctant to have so sensible a doctrine, having the judicial imprint of Chief Justice Royce, disturbed. The defendant must, then, be treated as having waived, by the express terms of his contract, all rights incident to the relation of surety, so far as pertains to the interpretation and enforcement of the contract. Dunham v. Downer, 31 Vt. 249 ; Sprigg v. Bank of Mount Pleasant, 10 Pet. 257, 263. II. The offer to show, by parol, a contemporaneous agreement that defendant should be holden but for six months, was an attempt to engraft a new stipulation by parol upon the written contract, which was clearly inadmissible. III. The third offer was properly denied, because, as we have seen, the defendant was not a surety, so far as the plaintiff is con [251] cerned. Secondly, it does not appear that any valid contract was made upon consideration ; nor that confiding in, and relying upon, plaintiff’s representations, the defendant forebore to protect himself. IV. The fourth offer, if otherwise admissible, would have been unavailing under our statute. Gen. Sts. c. 66, s. 4. Judgment affirmed.