Lamoille County National Bank v. Hunt

Kowell, J. The defendant was not entitled to have the jury drawn from the array, though at liberty. His full right was accorded when he had an impartial jury to try the case, as presumably he had. Quinn v. Halbert, 57 Vt. 178. The plaintiff waived the special counts, and elected to go to-trial on the general counts. Thereupon the defendant asked leave to amend Ms pleadings, for that he was surprised by the action of the plaintiff, and could not safely go to trial on the pleading? as they were. The denial of leave was discretionary and not revisable. The defendant now claims that he wanted to plead res yudieaia after suit commenced, and that such was his right. But it does not appear that he informed the court below that he wanted to plead that, and therefore he cannot stand on that ground now. The note in suit is dated August 30, 1894, payable thirty days from discount, and signed by F. 0. Whiting “and the defendant. In a former suit between these parties on certain other notes, commenced July 8, 1896, the' defendant pleaded [361] payment, and the jury found that two of said notes were paid by the note in suit and twenty-five cents. That finding appears from the answer of the foreman, assented to by the rest of the panel, in reply to a question by the court when the general verdict was returned. To the admission of the record in that case, to show that the bank accepted and discounted the note in suit, the defendant objects that said special finding forms no-part of the verdict, but is merely a narrative of what transpired in the jury room, and is not a special verdict, found “agreeably to the usages of law,” within the meaning of the statute, and that in order to make it such, the question should have been submitted to the jury before it retired, that it might receive the consideration its importance required. But it is settled law in this State that such findings are a part of the verdict and effective as such, especially when, as here, they are determinative of the substance of the issues raised and submitted. This suit was commenced the same day the verdict was rendered in the former suit, and it is said that if said special finding is to stand, it does not show, nor does it otherwise appear,, when the note in suit was discounted in payment — that it might have been within thirty days of the commencement of this action, and so not due when sued, and that therefore a verdict should have been directed for the defendant. But it must have been discounted before the former suit was commenced, else the finding of payment, which is conclusive upon the parties, could not have been what it was, for no plea of payment after suit commenced was interposed. The defendant’s offer to show his suretyship for Whiting on the notes for which the note in suit was given, and the plaintiff’s waste of Whiting’s collaterals therefor, and the defendant’s-ignorance of it when he signed the note in suit, and his reliance upon the bank’s figures as to the amount due on those notes,— was properly excluded. By expressly promising as principal in the note in suit, the defendant waived all rights as surety, [362] and stands no better in this suit in respect of said waste of security than Whiting himself would stand, as to whom it would be no defence by way of failure of consideration nor otherwise, except perhaps as matter of set-off, of which the defendant cannot avail himself, for as he is sued alone, there is no legal mu. tuality, the bank being liable to him jointly with Whiting if at all. Mott v. Mott, 5 Vt. 111, which holds that in a suit against two and only one served, he may plead in set-off a demand in favor ■of both, is criticised in Adams v. Bliss, 16 Vt. 42, and has not for a long time been regarded as sound. Johnson v. Kelley, 67 Vt. 386. Although the defendant may be surety for Whiting on the note in suit, as he offered to show, and although the bank may have wasted securities placed with it by Whiting as collateral thereto, as claimed, yet that does not release the defendant from liability on the note, because of the capacity in which he contracts, even though the bank knew of his suretyship. Pitts v. Congdon, 2 N. Y. 352; Marshall v. Aiken, 25 Vt. 327; Herrick v. Orange County Bank, 27 Vt. 584. Judgment affirmed.