Snow v. Fletcher

Bellows, J. The making of the note, including the authority of the agents, must be regarded as admitted, under the operation of the 44th rule of court. Great Falls Bank v. Farmington, 41 N. H. 32; Williams v. Gilchrist, 11 N. H. 535. The question then is, whether the defendants, or either of them’, have set up a valid defense. At the time the note was made, both were members of the firm, and both bound, and the defense urged is, that they have since been discharged by agreements with the [645] payee. If this be so, as between the defendants and the original payee, Hendee, the defense is also available against the plaintiff, to whom the note was transferred after it was discharged. Proof of the agreement with Fletcher, January 25, 1858, would, at most, only tend to show that he on that day ceased to be a member of the company ; but as the note was made in August, 1856, it is obvious that he would still be held upon it, unless some valid discharge was shown; and of this there was no evidence. The proof wras, therefore, rightly rejected. In respect to the other defendant, Randall, it appears that he offered to prove an agreement with Hendee, in the winter of 1858, the substance of which was, that Randall should go out of the/ company, and should receive for his share fifteen dollars, and be indemnified against all past liabilities growing out of his membership; that, accordingly, Ileudee, who was an acting director of the company, paid Randall the fifteen dollars, and Randall then surrendered to Hendee the .certificate of his share in the firm. As to the indemnity, it was proposed to show that Hendee told Randall that if he would thus go out he would give him a written indemnity against all past liabilities, and see him clear and harmless; and that in the course of the conversation Hendee made use of different expressions, saying he would discharge him from all past liabilities, and would give him an indemnity, and also that he would give him a writing to indemnify him, and would discharge him from all past liabilities; that Randall accepted the offer, received the fifteen dollars, surrendered his certificate, and has never since taken any part as a member of the firm. And the question is, whether this evidence tends to prove a contract of indemnity, there being no offer to show any subsequent contract in writing; and if so, whether it was the contract of Hendee, and upon sufficient consideration. It is to be assumed that the offer was to prove a parol contract to be gathered from various expressions made in the course of the conversation, some indicating an indemnity to be given at a future time, and others a present contract of indemnity; and one question is, whether from this evidence, and the fact of the payment of the fifteen dollars, the surrender of the certificate, and Randall’s ceasing to be a member from that time, the jury might legally have found a present contract of indemnity. Some of the expressions offered to be proved are certainly appropriate to such a contract, and we think it ought to have been left to the jury. Resides, we think it was competent to show a contract for a future indemnity in writing, because, to avoid circuity of action, it would operate as a release, inasmuch as the debtor, Randall, would be entitled, in a suit on such contract of indemnity, to recover back the amount he might be compelled to pay. Such is the doctrine of Robinson v. Leavitt, 7 N. H. 73, where the principle is stated to be, “that when a party pleads matter which, in case of recovery, would entitle him to maintain another suit against the plaintiff, on account of or by reason of that recovery, and for the same amount, the matter so pleaded operates as a discharge of the action, for avoiding circuity.” This doctrine is well sustained by the authorities cited, and [646] numerous others. Haynes v. Stevens, 11 N. H. 33; Durrell v. Wendell, 8 N. H. 369; Clark v. Brush, 3 Cow. 151; Cuyler v. Cuyler, 2 Johns. 186, and cases cited; 2 Wms. Saund. 48; Phelps v. Johnson, 8 Johns. 54; Tuckerman v. Newhall, 17 Mass. 581. It is said that whatever contract of indemnity was made, was the contract of the firm, and not of Ilendee, but we think that the jury might legally have found otherwise. It is true that Ilendee was at that time a director, but the case does not find that in making the agreement he acted as such, and the terms used l’ather imply the contrary. Besides, there was no evidence that Ilendee was empowered to bind the firm by such a promise, and in that case he would himself be bound. It is also urged that the doctrine of rebutter does not apply, because, in a suit on the contract of indemnity, Randall would not recover for its breach the amount of the judgment in this suit; and this may be true, unless the whole amount was paid by him; but whatever he was obliged to pay would be covered by the indemnity, and that sum would be recovered back. In Phelps v. Johnson, 8 Johns. 54, the contract with one of two makers of a note; both of whom were sued, was to procure and cancel the note, and yet it was held that this was a good defense to avoid circuity, although the judgment in the suit would have been against the two, and might not have been all paid by the one to whom the promise was made. But had judgment been recovered against both, the one indemnified might have recovered back of the plaintiff just what he had been compelled to pay, and this we understand is the foundation of the doctrine of rebutter. Nor do we think the agreement invalid for want of consideration, because the jury might legally have found that the contract to furnish indemnity was in consideration of Randall’s doing just what he did do; that is, receiving the fifteen dollars for his share, surrendering his certificate, and retiring from the firm; and whether this was strictly according to the mode provided by the rules of the company or not, it was a sufficient consideration for Hendee’s agreement; nor do we see how Randall, after that, could have claimed any interest in the assets of the firm. Upon these views, and inasmuch as a joint promise must be proved to be made by the defendants, the verdict ordered by the court must be set aside and a New trial granted.