Rawson v. Stewart

Strahan, C. J. The only questions presented by this appeal relate to the rulings of the court at the trial in the admission of evidence, and the instructions given to the jury. The court below permitted evidence to go to the jury tending to prove that the sureties on the bond, for a valuable consideration, entered into an agreement with the defendant that he should be regarded as a surety with them on said undertaking after his withdrawal from the firm of the Bank of Breckinridge, and that in consideration of money paid and the relinquishment by him of all claim upon the trust fund created by Luce, they, as well as Cooper, as between themselves, released him from all liability created by said bond on the judgment rendered thereon, or Cooper’s payment of five hundred dollars on the judgment. The first contention of the appellant is, that this evidence is incompetent. To state the objection in the language of counsel: “ The allowance of the question and answer to go to the jury, is the allowance of oral proof to vary the terms of a solemn judgment of a court upon a sealed instrument, fixing the status of all parties thereto, and to change the relative rights of the parties thereto; and this, too, by the testimony of a witness who is known to have assumed the obligations of a bond indemnifying the defendant in this case against his liability as a principal judgment debtor.” This objection and others presenting the same question, rest upon a misconception as to the effect of a judgment against several defendants as between themselves, in subsequent litigation growing out of the same transaction. In such case, does the judgment conclude the parties, or may the real facts be shown? In such case the several defendants are not adversary par [262] ties, and the judgment might be entered on the allegations of the plaintiff. The questions of right between the several defendants might not be at all material in that action, but might become so in a subsequent action between the defendants themselves. In such case, there is no reason why the truth may not be shown, and there is nothing in the rule of law on this subject to preclude it. On the contrary, it is held by all the authorities, so far as I have been able to discover, that the judgment does not conclude said defendants in such case. “Parties to a judgment are not bound by it, in a subsequent controversy between each other, unless they were adversary parties in the original action. If A recover a judgment against B and C upon a contract, which judgment is paid by B, the liability of C to B in a subsequent action for contribution is still an open question, because as to it no issue was made or tried in the former suit. As between the several defendants therein, a joint judgment establishes nothing but their joint liability to the plaintiff. Which of the defendants should pay the entire debt, or what proportion each should pay in case each is partly liable, is still unadjudicated; but a judgment against two joint debtors prevents either from denying the existence and obligation of the debt, though he may still prove, by any competent evidence in his power, that the whole burden of the obligation should be borne by the other.” (Freeman, Judg. § 158; McMahan v. Geiger, 73 Mo. 145; 39 Am. Rep. 489; Buffington v. Cook, 35 Ala. 312; 73 Am. Dec. 491; Gardner v. Raisbeck, 28 N. J. Eq. 71; McCrory v. Parks, 18 Ohio St. 1; Cox’s Admrs. v. Hill, 3 Ohio, 412; Duncan v. Holcomb, 26 Ind. 378; Dent v. King, 1 Ga. 200; 44 Am. Dec. 638; Harvey v. Osborn, 55 Ind. 535; Walters v. Wood, 61 Iowa, 290.) Counsel next insists that the evidence offered by the defendant, tending to prove that after the rendition of the judgment in Minnesota upon the bond and the payment of five hundred dollars thereon by Cooper, he, Cooper, released the defendant from all liability to him on account [263] of such payment, is incompetent. The ground of this objection does not very distinctly appear from the brief. One objection is that there was no consideration for the release. A release, like every other contract, must be supported by a consideration or else it is a nudum pactum; but here a sufficient consideration is alleged, and there is some evidence in the record tending to prove the same. The defendant could not put his whole case before the jury at one time, nor elicit all the testimony necessary to support it from one witness. He might prove the consideration by one witness and the fact of the release by another. Whether he did so or not was a question for the jury. The evidence objected to on this point tended in some degree to prove that Cooper released the defendant from all claim or liability on account of the payment by him of this five hundred dollars on the judgment; somewhat remote, it is true, but it related to that subject and could have no other effect. Some of the answers appear not to be altogether responsive to the interrogatories, but the interrogatories were proper, and in such case the appellant should have moved to exclude the answers, and not have rested on his objection to the interrogatories. It is proper to add that this evidence was taken outside of the state upon interrogatories, and this was the only course left open to the appellant. The last objection is to the charge. The part excepted to is as follows: “If he, Cooper, made this agreement, that he would not demand the payment of the five hundred dollars back from Stewart in consideration that he be released from further liability, it is binding, and plaintiff cannot recover.” This instruction fails to state the entire consideration as the same was disclosed upon the trial. Whether the payment of five hundred dollars, being a less amount than was due, and only a part performance of what the defendant was already bound to do, may be questioned; but he did more than this: he paid five hundred dollars for Yeaton as well as five hundred dollars for himself, and [264] then relinquished to Peak, Schroeder, and Cooper all his interest in the trust property assigned and conveyed to indemnify and save harmless the persons named, as well as Yeaton and the defendant. These acts constituted a sufficient consideration for the release. There was evidence on the subject before the jury; and if, through oversight or otherwise, the court did not put the instruction as broadly as the defendant was entitled to have it, the plaintiff cannot complain. The omission did her no injury, and it did not mislead the jury; and the verdict being for the right party, the same will not be disturbed. Let the judgment be affirmed.