Newcomer v. Kline ( 1841 )

Stephen, J.,

delivered the opinion of the court.

We think that the decree of the court below in this case was correct, and ought to be affirmed. The complainant had not full and adequate remedy at law, and was therefore entitled to the relief which he solicited at the hands of a court of equity. The instrument executed by the principal and his surety, was intended to be a joint and several single bill, for the payment of money lent. By mistake and accident, as charged in the bill, to which there was a demurrer, the word “dollars” was omitted by mistake, in consequence of which the. plaintiff was deprived of the specific security which was intended to be given, and was unable to support his action upon the single bill, in a court of law, as a specialty. The principle being well settled, that the consideration of a single bill cannot be enquired into, or a failure of it averred or proved in an action upon it at law. 9 Gill & John. 342. It is therefore inconsistent with the legal attributes of such an instrument, or its character of conclusiveness, as a specialty, that it should rest partly in writing, and partly in parol. Where the ambiguity is not latent, and raised by extrinsic evidence, but patent, or apparent on the face of the instrument, parol evidence is not admissible to explain such ambiguity; as where a blank is left for the devisees name in a will, parol evidence cannot be admitted to show whose name was intended to be inserted. Roscoe on Ev. 12.

According to contract, the plaintiff was entitled to a seeurtiy of higher dignity than a mere parol promise. He was entitled to a sealed instrument, the consideration of which could not be enquired into, and although he might have a rem» edy for his money in a court of law, in a different form of action, it might not be so full, adequate and complete, as the one contemplated by the parties. 7 Conn. Rep. 549. In that case' a bond was intended to be executed, but the seal was omitted by accident; relief was granted in equity, although it was contended that the party had his remedy at law. The judge in delivering his opinion observing, that the plaintiffs were entitled to a bond, the consideration of wdiich could not be enquired into at law. The remedy might not be adequate.

No doubt can be entertained as to the jurisdiction of a court of equity to correct the mistake in this case, and that such relief will be granted even in the case of a surety. See 1 John. C. Rep. 609. The surety in this case is equally bound with the principal for the payment of the money; in a joint and several bond, and as between the obligors and obligees, all the obligors are principal debtors, though as between each other they may have the rights and remedies resulting from the relation of principal and surety. 6 John. C. Rep. 309. In the same book 307, Chancellor Kent says: a party who joins in a bond as surety, is as much bound in law and equity as the principal. Such contracts are of every day’s occurrence in the business of life, and recognized as valid in every system of jurisprudence; and it would be most extraordinary and a-very great blemish in the administration of justice, if the protection of a court of equity was altogether denied tc a creditor requiring equitable assistance against a surety. The surety is, in the contemplation of a court of equity, as much, bound as the principal, by the terms of his contract. So in. page 306, the Chancellor says of the surety, by joining in the bond becomes a principal debtor to the obligee, and the debt is presumed to have been created upon the credit given to the surety, as well as to the principal debtor. Upon the whole, we think the decree of the court below is correct and ought to be affirmed.

DECREE AFFIRMED.