Barker v. Buel ( 1850 )

Fletcher, J.

The conveyance by Bliss to the plaintiffs was a good and valid conveyance to pass the title of the goods in question to the plaintiffs. The defendants having taken the goods thus belonging to the plaintiffs, and having refused to deliver them to the plaintiffs, when demanded by them, the plaintiffs are well entitled to maintain this action, Irrespective of the rights of the other sureties on the note to the property of the principal debtor, held by the plaintiffs as security, the plaintiffs, being themselves liable for the whole amount of the note, have a right to recover to that amount, that is, an amount equal to the whole amount of their legal liability on the note.

The testimony of Bliss, being offered to control and change the legal import and effect of the written instrument, is very clearly not admissible. The property being expressly conveyed to save the plaintiffs harmless from their whole liability, which was for the whole note, the consideration expressed can have no influence in limiting the effect of the instrument, nor can the testimony of the mortgagor be admitted to show an intention different from that expressed in the written instrument.

The plaintiffs are entitled to recover in damages a sum equal to the amount of the whole note for which they are liable, and will of course have their taxable costs in this suit against the defendants. There is no ground for recovering any thing more as costs. »