Hill v. Sweetser

By the court. The first question to be settled in this case is, whether Wilds was a competent witness ? It is contended, 4hat he had an interest inclining him to testify in favor of the defendant. It is undoubtedly true, that if the plaintiff shall recover against this defendant, and collect of him the amount of this note, Wilds will be liable to refund to the defendant that amount. But he will be no further liable, because the defendant has released to him all claims on account of the costs of this suit. Such is the liability of the witness, if the plaintiff shall prevail. But what is the situation of the witness, if the plaintiff shall fail in this suit ? It is admitted that he made the note as principal, and that it was given for a just debt. If a suit shall be brought against the witness on this note, [171] on what ground can he resist it ? We see none. The note contains bis several promise. He is then liable to the same extent, whether this suit shall be determined in favor of the plaintiff* or the defendant. He stands then without any interest inclining him the .one way or the other, and we think he was properly admitted as a witness. The next question is, whether the defendant is, under the ..circumstances, bound to pay the note ? There is nothing in the ¡case, which shows that the person, in whose name the suit is brought, has any interest in it. The note was given for a debt due to Fife, and for aught that appears, the note still remains his property. The facts are shortly, that the defendant agreed to be a surety with Knowlton, and to sign a note in which both are named as sureties. After the principal and the defendant had put their names to the paper, it was carried to Knowlton to sign and he refused. It was then delivered to Fife without consulting the defendant, and Fife, knowing all these facts when he received the note, now attempts to enforce the payment of it by the defendant. The question is, whether Fite is entitled to recover ? We are of opinion, that he is not entitled to recover. The contract was never completed. The evidence shows, not that the real contract was different from the contract which is proved by the note, but that under the circumstances of the case the note is not evidence of a contract. When Knowlton refused to sign the note, it ought to have been .cancelled or returned to the defendant. It certainly ought not to have been delivered to Fife without the defendant’s consent. He never had consented to be a surety alone. And as Fife knew all the circumstances, the attempt to enforce the payment of the note can hardly be viewed in another light than as a fraud. It is clear that the defendant is not bound by the note. 2 N. H. Rep. 173; 10 Johns. 198, Denniston v. Bacon; 2 Caine’s Rep. 249; 2 Starkie’s N. P. C. 340 Cartwright v. Williams; 1 H. Bl. 89, note, Beck v. Robley, Judgment on the verdict.