Atwood's Adm'r v. Wright , 29 Ala. 346 ( 1856 )

EICE, C. J.

The first question is, whether a surety not sued is a competent witness for his principal, in a suit against the latter-founded on a promissory note executed by them in this State.

It may be conceded that, according to the civil law, he would be incompetent; for, by that law. the obligation of the surety being dependent upon that of the principal, the surety was regarded as the same party with the principal, with respect to whatever was decided for or against him, and was allowed to oppose all the exceptions in rem which could be opposed by the principal, and to “appeal against the judgment, or to form an opposition to it, if it be in the last resort.”— Pothier on Obligations, part 4, c. 3, A. 5, § 62 ; McKellar v. Bowell, 4 Hawks, 34 ; Douglass v. Howland, 24 Wend. 54. But that is not the law which furnishes the rule of decision for us. We must decide the question above stated, by the principles of the common law, and the provisions of our own statutes.

By statute', the-obligation, or promise, of the joint promissory note, is several, as well as joint. — Clay’s Digest, 323, § 61 ; Code, § 2143 ; Duramus v. Harrison, 26 Ala. R. 326. By section 2302 of the Code, the witness, although interested in the event of the suit, or liable for costs, is competent, “ unless the verdict and judgment would be evidence for him in another suit.” By. the common law, they cannot be used as evidencejfor him, unless they would have been evidence agamst him, had they gone contrary. If they had gone for the plaintiff, they could not, according to that law, have been used by him in a subsequent suit on the same note against the witness ; because he was neither a party to the suit against the principal, nor a privy. He bound himself by the note, simply as surety, for the payment of a fixed sum. of money; but not to pay the amount of any judgment that might be rendered against the principal, nor to abide the event of any suit against the principal. There is nothing in the nature or terms of his obligation, which, upon common-law principles, could make the mere verdict and judgment against the principal any more admissible ag.ainst him, than against the merest stranger. The nature and terms of his obligation .differ widely from those which are properly held to render a judgment against the principal evidence against his sureties; such as bonds by which sureties do not contract absolutely for the payment of a fixed sum, but bind themselves that their principal shall abide the event of a suit, and other bonds or agreements from, the nature of which it is plain that the sureties mean to be affected or concluded by the event of a suit against their principal, or by his acts or admissions.— McKellar v. Bowell, 4 Hawks, 34; Douglass v. Howland, 24 Wend. 35 ; Ward v. Wilkinson, 4 Barn. & Aid. 410 ; 1 Starkie on Ev. 175, 176 ; Brahan v. Ragland, 3 Stew, R. 256 ; McLelland v. Ridgway, 12 Ala. R. 482 ; Crutchfield v. Hudson, 23 Ala. R. 393 ; Williamson v. Howel, 4 Ala. R. 693 ; McClure v. Colclough, 5 Ala, R. 65 ; Price v Cloud. 6 Ala. R. 248 ; Jones v. Kolisenski, 11 Ala. R. 607 ; Lovett v. Adams, 3 Wend. 380; Ligon v. Dunn, 6 Iredell, 133 ; Moffit v. Gaines, 1 ib. 158 ; Baker v. Briggs, 8 Pick. R. 122; 3 Phil. Ev. (ed. of 1839) 1536 ; 2 Starkie on Ev. 775, 786 ; 2 Smith’s Leading Cases, 44 Law Library, top page, 81.

Without extending this opinion unnecessarily, we deem it sufficient to declare, that a surety not sued is a competent witness for his principal, in a suit against the latter founded on a promissory note executed by them in this Slate ; and that the reasons upon which his competency rest, are fully stated in the authorities hereinabove cited.

2. The maker of a note given on the purchase of a slave, at a sale made by an administrator, can set up a fraud in the sale, in defense of a suit on the note. — Rice v. Richardson, 3 Ala. R. 428.

3. The right to make such defense is not destroyed, by the mere fact that such fraud was not perpetrated by the administrator himself, but by the auctioneer employed by him to make the sale, whilst in the very act of making. the sale. For it is well settled, that no one can hold an interest obtained through the fraud of another, any more than if the fraud were committed by himself. In legal contemplation, it is'as much against conscience to attempt to avail one’s self of the iniquity of an agent, after it is known, as if there had been pre-concert. Although the agent was not authorized by the administrator to make the representation which deceived the defendant, and which induced him to bid for the slave the price for which the note sued on was given ; yet, if that representation was false and fraudulent, its consequences cannot be avoided by the administrator, when they are set up as a defense to a suit brought by him on that very note. If the interests gained by the fraud of the agent could be held by the administrator in such case, fraud would place itself beyond the reach of the court, and gain the mastery over the law. — Bowers v. Johnson, 10 Smedes & Marsh. 169; Meadows v. Smith, 7 Iredell’s Eq. Rep. 7; Harras v. Delamar, 3 ib. 219; Huguenin v. Basley, 2 White & Tudor’s Leading Cases in Equity, pt. 2, top page, 64.

4. Misrepresentations may amount to a fraud, although the party making them did not at the time /mow them to be false; as, where, not knowing them to be true, he makes them recklessly, for the purpose of influencing the person to whom they are made to purchase a particular chattel, and does thereby influence him to purchase that chattel, to his detriment. — Munroe v. Pritchett, 16 Ala. Rep. 785 ; Smith v. Robertson, 23 Ala. R. 312 ; Stewart v. Bradford, 26 Ala.R. 10 ; Read v. Walker, 18 Ala. R. 323.

As a 'general rule, it is sufficient for the pa,rty upon whom lies the burden of proof, to establish the substance of the issue. This rule, in connection with the principles hereinabove stated, justified the refusal of the first charge asked by the plaintiff. Under the issue formed on the second plea, the defendant was not “bound to prove” that both “ Patterson and Sellers knew the negro to be unsound before the sale of her.”

The qualification with which the court below accompanied the second charge asked by the plaintiff, must be construed in connection with the evidence ; and thus construed, it is defensible upon the principles of law above laid down.

The third charge asked by the. plaintiff,, was properly refused. It is in conflict with the views above expressed by us. It disregards the well-known difference between warranty andfraud, and assumes, in effect, that public notice, given by the administrator before the commencement of the sale to be made by him, “that no warranty would be made.of soundness, and every body must judge for themselves,” would amount to a license to the auctioneer employed by him, to deceive and defraud, by misrepresentations made “without the knowledge or consent of the administrators,” every purchaser at the sale!. Whether such misrepresentations of the auctioneer could “bind” the administrator personally, was not a material question in this case. . The defendant was not attempting to “bind the administrator personally”, by any such misrepresentation, but to use such misrepresentation merely in defense of the suit brought on the note.

No decision on the pleadings appears to have been made against the plaintiff.

There is no error in the rulings of the court below on the points embraced by the assignment of errors; and its judgment is affirmed.