Paul v. Berry

Mr. Justice Scholfield delivered the opinion of the Court: From the face of the note, the makers appear to be jointly liable to the payee as principals, and that the plaintiff was so liable, together with the other makers, was admitted by his failure to make defense when suit was brought on the note, and this is all that is established by the record of the judgment in that case. As between the makers, there arises no presumption, simply from the note or the judgment, that the first signer, or any other number less than the whole, is or are to be treated as principal or principals, and the others as co-sureties, but it rests in evidence, to be introduced aliunde the note and judgment, to determine what relation they sustain towards each other. The burden is upon the plaintiff to prove that he is a surety, not only as between himself and his father, David D. Berry, whom he claims to be principal, but also as between himself and the defendant, for, notwithstanding where it is established that two or more persons are co-sureties, and one of them pays the debt for which they are liable, he may have contribution from the others to the extent they are thereby relieved, it is well settled that co-sureties may, by agreement among themselves, so far sever their unity of interest and obligation as to terminate the right of contribution. 2 Chitty on Conts. (11 Am. Ed.) p. 894, and note; Moore v. Isley, 2 Devereux & Battle’s Equity, 372, 374; Baggott and another v. Mullen, 32 Ind. 332; Harris v. Warner, 13 Wendell, 400; Barry v. Ransom, 12 N. Y. (2 Kernan,) 464. It is true, it was said by Gray, J., in delivering what purports to be the opinion of the court in Norton v. Coons, 6 N. Y. (2 Selden,) 33, that, from the mere execution of the note, an implication arises that the sureties, as between themselves, are to share the burthen equally, and that parol evidence is inadmissible to contradict what is thus implied; but this view, as appears by the separate opinions of other members of the court, was not concurred in by a majority of the court, and it is expressly repudiated in the subsequent case of Barry v. Ransom, supra, where it is held parol evidence is admissible for the purpose of showing what relations several persons, who are sureties for a common principal, intended to sustain towards each other. And to the same effect is Blake v. Cole, 22 Pickering, 97, and the dictum of Lord Eldon in Craythorne v. Swinburne, 14 Vesey, 160. Plaintiff, in giving his evidence, denies that he received any part of the consideration for which the note was given; that he signed his name to the note, or that he had anything whatever to do with its execution. If this be true, he had a perfect defense, which he might have relied upon, had he chosen to have done so, when he was sued on the note. It was, however, competent for him to ratify the execution of the note and acknowledge its binding validity upon himself, and when this was done, his relation to the note was precisely the same it would have been had it been executed by him personally. It would seem to admit of no doubt, even if he did not receive any portion of the consideration for which the note was given, he might voluntarily become a principal, and this, whether the note was signed by his father, who received the consideration, or not. If he might do this himself, he might do it by another; and being done by another, his subsequent ratification of the act would be equivalent to a prior authority in him whose acts he ratified. The evidence of ratification of the execution of the-note by the plaintiff is ample in the facts, that he suffered judgment thereon to go against himself, without attempting to make defense, and that he subsequently paid the judgment. Before judgment went against him, he was informed that the defendant and Gilham became sureties on the note, with the understanding that he was principal. He then denied that he was either principal or surety, and his subsequent acts of ratification were, therefore, with full knowledge that it was claimed he was principal, and not surety. We think the evidence of what was said and done between David D. Berry, and the defendant and Gilham, when he applied to them to become sureties on the note, was competent. It was part of the res gestee, and tended to show what the understanding and intention of the parties were, as between each other, when they signed the note; and the plaintiff’s ratification of his liability on the note, after knowedge of the position it was claimed he occupied toward the defendant and Gilham, makes the acts and declarations of his father, in obtaining their signatures, his own. ■ The judgment is reversed and the cause remanded. Judgment reversed.