Weare v. Sawyer , 44 N.H. 198 ( 1860 )

Bellows, J.

It has already been decided, in Weare v. School District, and Weave v. Gove, reported in this volume, that the vote to borrow money was-not passed at a meeting duly called for that purpose ; and, therefore, as the agents of the 'district had no authority to put its name to the note, they are themselves bound; and the remaining ground of defense proposed to be set up is, in substance, that at the time of the making of the note it was agreed that the defendants’ undertaking should extend no farther than to insure the performance of such contract as had been legally entered into by the school district, whereas the defendants’ contract to pay the money is on its face absolute.

The general rule would, undoubtedly, exclude such parol evidence ; and we are not aware of any exception by which it could be admitted.

It is true that parol evidence may be received to prove that one of the makers is but a surety; although nothing of the kind appears upon the face of the instrument. Bank v. Kent, 4 N. H. 221. This, however, is not for the purpose of varying the obligation as originally entered into, but is admitted in connection with proof of indulgence to the principal, to show a subsequent discharge of such surety, by substituting a new contract, to which ho was no' party.

The case of Hoyt v. French, 24 N. H. 198, is in point. There it was proposed to show by parol that when the surety signed the note it was agreed that the first money paid by the principal should be applied thereon, and that money had been so paid, but not applied ; and it was held that the evidence was not admissible, as the effect would be to vary the terms of the note. Of the same character is Lang v. Johnson, 24 N. H. 302.

It is said, also, that the liability of the surety is coextensive only with that of the principal, and that the school district must be regarded as the principal here. As a general proposition it may be true that, in the contract of guaranty, there must be a principal who is also liable. It would be true in all cases where the guarantor stipulated to guaranty the performance of the principal’s engagement.

But in that large class of cases where the contract is to pay a specific sum of money, there, we apprehend, the guarantor or surety is, in the absence of fraud, bound by the terms of his contract, although his principal, by reason of coverture, infancy, or want of authority in the person assuming to act for him, is not bound.

So it is laid down (Chit, on Cont., 9 Am. Ed. 441) in respect to infants, married women, and other persons incompetent to contract; and we see no reason why the same doctrine does not apply to the case of a want of authority. In fact it appears to have boon so applied in the case of a surety for a partnership, where the name of the firm was affixed to the note without authority. Stewart v. Boehm, 2 Watts 356 ; 3 U. S. Dig. 496, sec. 154.

The same principle is recognized in Conn v. Coburn, 7 N. H. 368-373, where a surety for an infant upon a promissory note, given for necessaries, having paid the note, w7as permitted to recover the amount' of the infant; Barker, J., holding, that as the surety was bound, as the debtor, to pay the note, he had a right to do so, and call upon the infant. Such, also, is the doctrine of St. Albans Bank v. Dillon, 30 Vt. 122, where the principal was a married woman. Bars, on Cont. 194.

Beside, in the case before us, the agents, who used the name of the district without authority, are themselves bound as principals, and it is not competent to show as a defense that the sureties supposed the district to be the principal. Had they been misled by fraudulent representations of the town, a remedy might be found for them ; but as the case stands, they, acting upon their own understanding of the law and the facts, have promised to pay the sum loaned, and we think they are bound by it.

It is suggested, also, that, in case of a mistake in this respect, it may be shown and corrected, but we think it can not be done in this form, but only by bill in equity.

In accordance with the agreement of the parties, there must therefore be

Judgment for the plaintiffs.