Mead v. Merrill , 33 N.H. 437 ( 1856 )

Sawyer, J.^*

The evidence offered in relation to the unprofitable character of the business after the sale, while it was conducted by Merrill, had no legitimate tendency to prove the fact sought to be established, namely, that it was unprofitable at the time of the sale under the management of Mead. Whether a branch of business like that of a common carrier is or not profitable, depends so much upon the character of the person by'whom it is conducted, his good or bad management, the confidence reposed in him by those who may have occasion to give him employment, and other like circumstances, that the success or failure of one person to make it a profitable business furnishes no just ground for the inference that it may or not be made so by another. If the representation of Mead that the business was a profitable one, is to be understood in reference to its intrinsic character, independent of any peculiar fitness or unfitness of the individual for managing such business, the evidence would be equally incompetent. If admitted, it would have raised the collateral issue, whether Merrill’s want of success was not in fact the result of his want of judicious management rather than of the intrinsically unprofitable nature of the business. Before any weight could properly be given to the evidence, enquiry must be made into the circumstances connected with his conduct of the business, and for this collateral enquiry the plaintiff, upon the issue to be tried, could not be expected to be prepared. In any view the evidence was properly excluded.

When this case was considered by the court, as reported in 10 Foster 472, it was upon a state of facts somewhat varying from that now presented. In this case the evidence offered showed that Johnson, the surety upon the note not declared on, was the father-in-law of the principal Merrill, one of the defendants in this action, and that he became surety for the purpose of aiding his son-in-law in establishing himself in business. These facts were not contained in the former ease. The addition of these facts, however, does not change the law of the case. The relation between the father and son-in-law, in reference to this transaction, was merely that of principal and surety, as in ordinary cases. The fact that the surety was the father-in-law of the principal, and became surety from the motive of rendering aid to his son-in-law, does not present a case for the application of legal principles differing from those to be applied in other cases of suretyship. The motive in all cases of suretyship may be supposed to be, to render aid to the principal, and merely because of the existence of such motive, and of the relationship, whether by blood or marriage, it is not to be understood that a state of tutelage or wardship of the principal to the surety exists, or may be inferred to exist, upon which a presumption might arise that the latter in assuming the suretyship was arranging an advancement for the former.

Whatever defence these facts might furnish to Johnson, the surety, against the note for f500 signed by him as surety, they furnish none to the defendant Merrill against the note in suit.

Judgment on the verdict.

* Perley, C. J., did not sit.