Child v. Eureka Powder Works

Bartlett, J. The plaintiff, according to the finding of the auditor, being a mere accommodation acceptor as between himself and the defendants, stands as a surety. Parks v. Ingram, 22 N. H. 292. The notes were given to indemnify the plaintiff for this liability, and upon each of these notes he can recover only the amount he has paid out before trial on account of the liability for which it was an indemnity; Osgood v. Osgood, 39 N. H. 210; Little v. Little, 13 Pick. 426; with interest from the time of payment. Cushing v. Gove, 15 Mass. 70. The auditor had no power to allow an amendment of the pleadings ; Merrill v. Russell, 12 N. H. 77; and he could not allow the note numbered 357, if it varied from the specification. The plaintiff' could not recover on the note which had not matured at the date of his writ, as no cause of action had then accrued to him upon it; and parol evidence could not be received to show that the note was, when made, payable otherwise than according to its terms. 2 C. & H. Notes Phill. Ev. 591. Under the specification, describing the notes as payable to and indorsed by George Mathewson, and under the count for money had and received, the plaintiff could not recover on the .notes which wrere payable to George Mathewson, but not indorsed by him, for they vary substantially from the specifiea [358] tion; and beside, if they had been passed directly to the plaintiff by the defendants, yet no money and nothing treated as money passed between them. Foster v. Shattuck, 2 N. H. 447; Elliott v. Abbott, 12 N. H. 554; Chit. on Bills 581. If the judgment recovered by the plaintiff in New-York can avail the parties defending in this suit, it can not do so upon the general issue, as that judgment was recovered since tlie commencement of this suit. 1 Chit. Pl. 657; Sogers v. Odell, 39 N. H. 452; Kimball v. Wilson, 3 N. H. 102. The question whether the plaintiff, if he had paid the bills before suit, might have his remedy upon the implied promise of indemnity, notwithstanding the notes, if they were unsatisfied (see Comwall v. Gould, 4 Pick. 448; Gibbs v. Bryant, 1 Pick. 121), does not arise upon the pleadings. The plaintiff, standing as a mere surety, could maintain no action upon such implied promise before payment. Parks v. Ingram, 22 N. H. 292. It follows that the money obtained by the defendants upon the acceptances was not received to the plaintiff’s use; 1 Chit. Pl. 356; and for the subsequent payment he can not recover under a count for money had and received. Ford v. Keith, 1 Mass. 139. Whether or not, upon the facts stated, the plaintiff could recover any damages of the defendants for not placing him “ in a position immediately to protect himself,” &c., we need not inquire, for no such question arises upon the pleadings. The indorsement of the notes by the plaintiff’s attorney was without authority; White v. Hildreth, 13 N. H. 104; and therefore could not affect the right of the plaintiff. Nothing is stated in the case to show that the objection taken to the deposition of Child was well founded in fact. The various motions to amend may be considered at the trial term. The report must be recommitted.