First National Bank v. McKenney , 67 Me. 272 ( 1877 )

Barrows, J.

TJndei’ the strictest ancient rules of pleading, the plaintiffs’ declaration upon these joint and several notes as the several notes of the defendants must have been held good in these several suits against them. The contract between the parties to the suit was set out according to its legal import and effect, and it mattered not though the instruments px'oduced in evidence showed another and joint contract also. That was not the contract here sued, and there was no occasion to refer to it in these declarations merely because it could be proved by the same instrument which proved the contract declared on.

We find neither reason nor authority to sustain the defendants’ objection that the notes relied on ought to have been described in all their legal effect, and that the failure to describe their joint character and import makes them inadmissible to support a several action against one of the promisors.

That this is a proper mode of declaring against a joint and several promisor upon a note which is several as well as joint does not appear to have been doubted.

The courts have gone further, and by a long series of decisions have established the doctrine that where one of several joint contractors is sued alone, the declaration setting out the contract as his, no notice being taken of his co-contractors, is no variance, and his only method of availing himself .of the omission is to plead it in abatemexxt. Cabell v. Vaughan, 1 Saund. 291. Rice v. Shute, 5 Burr. 2611. Abbot v. Smith, 2 Black. 947. Wilson v. Reddall, Gow. 161. Mountstephen v. Brooke, 1 Barn. & Ald. 224.

The notes to Cabell v. Vaughan, ubi supra, and to Rice v. Shute, in 1 Smith’s leading cases, 796, (*647) furnish many other citations from English and American authorities to this effect.

That this has often been recognized in this state as the correct doctrine may be seen by referring to Winslow v. Merrill, 11 Maine, 127. Robinson v. Robinson, 10 Maine, 240. Hughes v. Littlefield, 18 Maine, 400. White v. Perley, 15 Maine, 470. Reed v. Wilson, 39 Maine, 585, 586. Hapgood v. Watson, 65 Maine, 510.

An early direct application of this doctrine to cases arising upon negotiable paper is found in Evans v. Lewis, Exchequer East. Term, 1794, (cited in Mountstephen v. Brooke, 1 Barn. & Ald. 226), an action against defendant as drawer of a bill which was set forth in the declaration as his bill. On non assumpsit pleaded it appeared that the bill was drawn by defendant and another jointly. The point was saved whether this was a variance, and the court were of opinion that it was not and that the only mode by which the defendant could have made the objection was by plea in abatement. And such plea in abatement can prevail only in cases where all the parties ought to be joined, and not where, as here, the plaintiff may join them all or sue them severally at his election.

The cases rather recognize than decide the propriety of declaring against one of the joint and several promisors upon a note as upon his note, without setting out the joint contract.

In Beecham et als v. Smith, El. B. & E. 442, (96 E. C. L. R.) 441, a several suit thus brought was sustained, though, owing to a. technical difficulty, a joint suit could not have been maintained. See also Anderson v. Hamilton, 6 Blackf. 94.

So far as this matter was Jeon cerned, the amendment was certainly unnecessary and immaterial, the notes being receivable in evidence under the original as well as the amended counts.

But we have no doubt of the power of the presiding judge to allow the amendment. It introduced no new cause of action and only gave a further description of the instrument to be relied on in evidence, though not of the several contract of the defendant which was declared on.

Nor is there any substance in the objection that the notes were not admissible under the original or amended counts because nothing was said of the partnership relation of N. B. Osgood & Co. or the suretyship of the defendants. That was a matter which concerned the principals and sureties as between themselves alone and had nothing whatever to do with the contracts declared on which these defendants made, as several promisors on the notes, with the plaintiff bank as promisee.

If plaintiffs had done any act which would have the effect to discharge a surety it was competent and necessary for defendants to plead it if they would avoid the contract declared on, which was an unconditional several promise of each as an original independent promisor to pay the note.

The notes were not made payable to the plaintiffs by their full corporate name.

The First National Bank of Biddeford is the plaintiff in the record, and there are many First National-Banks in the state and country. The notes declared on are not more uncertain on their face than are all notes which are payable to that numerous and ubiquitous individual known to the law as J. S.

But we need not stop to consider whether the defective description of the plaintiffs in the notes was good ground of objection to their reception as evidence under the original counts, for it is clear that the amendment alleging that the defendants promised the plaintiffs by the name of the First National Bank was allowable. Cooper v. Bailey, 52 Maine, 230. Cummings v. Buckfield, B. R. R. 35 Maine, 478. Colton v. Stanwood, 67 Maine, 25.

But the defendants further object that the plaintiffs’ right to recover on their notes is barred because the plaintiff bank became party to statute assignments made by the principals for whom these defendants were sureties, and they claim that the discharge of the principals discharges them also.

It appears that the plaintiffs became a party to these assignments and presented and proved the notes here declared on against the property of the principals in the hands of their assignees at the request of these defendants and other sureties upon paper held by the bank, as appears by a written instrument signed by the defendants and other sureties for the same principals, which sets forth the fact that the bank holds certain negotiable paper among which are the notes here sued, and that the principals have made an assignment individually and as a firm for the benefit of such creditors as may become parties to the same, and an arrangement that the bank will at the request of the sureties become parties thereto, and an agreement that “it is understood that by becoming parties to said assignment the said First National Bank release no right as against us on said paper, but for value received we each hereby agree with and promise said bank to pay said bank such balan ce of said notes upon which our names individually appear as may be due and owing on said paper, with interest at the rate of eight per cent, over and above what said bank may receive on said paper as a dividend,” &c.

In the face of such a memorandum subscribed by themselves the defendants cannot successfully contend that the plaintiff bank released any right of action against the sureties by discharging the principals, at the request of the sureties themselves, whose agent it became, for their mutual benefit, to procure in part payment of the notes, such dividends as might be realized from the assignment, with the distinct stipulation on the part of the sureties that such action on the part of the bank should not affect the rights of action which the bank had against the sureties severally. This is the only reasonable construction of the memorandum of December 8, 1875. See, as to the'effect of such an arrangement between the holder of negotiable paper and other parties, Fiske v. Stevens, 21 Maine, 457; and Bayley on Bills, 2d Am. Ed. pp. 361, 362, and Phillips and Sewall’s notes thereon.

Nor can the right of action on the $1500 note against McKenney be regarded as postponed until the final settlement of the assignment of Locke & Osgood as copartners.

If anything should be realized by the plaintiffs therefrom they would simply become trustees of the surety for the amount, subject to an adjustment of the interest account according to the memorandum of December 8, 1875.

Even had there been an agreement not to sue until the final settlement of the company assignment, it would be no bar to this suit. Ford v. Beech, in the Exchequer Chamber on error from Q. B. 63, (E. C. L. R.) 852. The remedy of the aggrieved party in such case would be by suit for the breach of contract. Ford v. Beech, above cited. And see also Young v. Jones, 64 Maine, 563, 570. In both cases Exceptions overruled.

Aitleton, O. J., Walton, Yirgin, Peters and Libbey, JJ., concurred.