Nims v. Bigelow

Bellows, J. The question was whether the plaintiffs and the defendant, as between themselves, were joint contractors, or whether the defendant alone was the contractor, and the plaintiffs merely [380] sureties. Upon this point the evidence in inspect to the main building was conflicting; but the defendant contended that the contract in writing between the plaintiffs and the defendant of the one part, and the Cheshire County Agricultural Society, of the other part, was conclusive; and that parol evidence that the plaintiffs were sureties only, was inadmissible. The court, however, instructed the jury otherwise; and that the written contract wTas to be weighed with the other evidence in determining the question. These instructions we think were right. It is well settled in New-Hampshire that, as between the sureties and payee of a promissory note, or other written contract, parol evidence is admissible to prove that one of the ¡promisors was but a surety, for the purpose of letting in the defense that the surety was discharged by some agreement with the principal for indulgence, or other variation of a contract. So it is equally well settled that such evidence is admissible, as between the promisors, to enable the surety to recover of the principal, on the implied contract of indemnity. The question before us must be governed by the same principle. Here the plaintiffs and the defendant apparently contracted as principals, but for the purposes of determining their rights, as between themselves, parol evidence may be received that one party was but a surety, as in the case of promissory notes. Another question arises upon the instructions to the jury, that if the parties looked over the accounts, and upon a full and final liquidation of all their accounts the defendant promised to pay the balance found to be due, he would be bound in this action, although such accounts were found to be of a partnership character. Of the general correctness of these instructions there can be no doubt. Gibson v. Moor, 6 N. H. 547; Wright v. Cobleigh, 21 N. H. 389; Story on Part., sec. 219, note 1, and cases cited; Foster v. Allanson, 2 T. R. 479; Wray v. Milestone, 5 M. & W. 21. There can be no objection to the instructions that the jury might consider the manner in which the parties conducted the business; how they charged and how they paid each other, there appearing no objection to the reception of the books in evidence. The jury having returned a verdict for the note and interest, and for $97.72, and interest from the date of the writ, the court directed a general verdict, and adjourned until afternoon. On the coming in of the court, and before any other business was done, the court inquired of the foreman, the jury being in their seats, if they had allowed the order; to which he replied they had not, but had allowed the $28 in the account. The court then ordered the papers to be committed to the jury, to find the order due or not due, and if due to strike out the $28, and allow interest on the order; and to these proceedings, ordered by the court, the defendant objected. The jury found the order to be due, and interest; and a general verdict was drawn up accordingly. That the court might properly have sent out the jury to correct this mistake before they separated, there can be no question; and there being no evidence or suggestion that any abuse was practiced during their separation, the only inquiry is, whether the mere fact [381] of such separation must vitiate the verdict. Upon looking into the cases, it seems to be well established that the mere separation of the jury, without other evidence of abuse, will not affect the verdict; although it is suggested by Parker, J., in State v. Prescott, 7 N. H. 287, that in criminal cases another principle ought to be adopted, namely, that injury to the prisoner should be presumed, unless disproved by the prosecution. But in respect to civil causes the authorities are quite clear; as in Barrett v. Phillips, 1 Gall. 234; where a juror, without permission, and after the charge, separated from the rest and was gone two hours; was then brought back and a verdict was agreed on ; and Story, J., held this to be an application addressed to the discretion of the court, and refused to set aside the verdict; although he was of the opinion that it should be set aside, unless the conduct of the juror was free from any unfavorable presumption. Smith v. Thompson, 1 Cow. 221, wras similar, and the court held that there was no probability of abuse, and refused to set aside the verdict. So is State v. Babcock, 1 Conn. 401. In Brandin v. Grannis, in note to State v. Babcock, Baldwin, J., assumes as the law of Connecticut that if the jury should agree on a verdict and separate, and afterward, on reflection, agree upon a different verdict, they might lawfully do so. So it is laid down in Co. Litt. 227, b, that iu case the court be adjourned the jury may give a privy verdict to the judge, and then they may eat and drink ; and then the nest morning they may affirm or alter their privy verdict. In People v. Douglass, 4 Cow. 26, which was a capital case, it was held that the mere separation of a juror, without the least suspicion of abuse, would not vitiate the verdict. In Winslow v. Draper, 8 Pick. 170, a similar doctrine was held in a civil case, where the jury had agreed on Saturday afternoon, and separated until Monday, by the permission of the court, when they were sent out and they put the verdict iu form. So, also, is Rex v. Wolf, 1 Chit. 401. So if there be a mistake the court may send back a jury to reconsider it. Bradley v. Sheldon, 7 Johns. 32; Horton v. Horton, 2 Cow. 589. In Clough v. Clough, 26 N. H. 33, on the return of a verdict the jury were inquired of as to its meaning, it being in favor “ of the defendant in damages, amounting to $10; ” but the plaintiff objecting, an answer was not then made; but subsequently, and after they had separated, the inquiry was again made and answered, and a general verdict then entered, which the court refused to set aside. In Chapman v. Coffin, 14 Gray 454, the jury had agreed upon a verdict and separated, and in the morning on being rendered it was found that no damages were assessed; and the court, against the defendant’s exception, directed the jury to return and assess the damages, which they did; and the court held this was no such inequality as should disturb the verdict. The only difference between this case and the one before us is, that here the jury separated after the verdict was rendered, and when they might have considered their connection with the case ended, and therefore at liberty to talk about it. This, however, only goes to the greater probability of abuse ; and as nothing of the kind is proved or suggested, and of course nothing reported by the [382] presiding justice, it may well be regarded as a case of mere separation, with no proof of abuse, and, therefore, upon the authorities, not a case for setting aside the verdict, especially as the change in the amount is of a very trifling character. Of course the power of sending out a jury for a further consideration, after they had once separated, with the understanding that their duties had been discharged, should be very sparingly and cautiously exercised, and never under circumstances to endanger the substantial rights of the parties; and from any thing that appears in the facts reported there is not the least reason to suspect that the discretion vested in the judge has been used injuriously to the defendant; and therefore there must be Judgment on the verdict.