Brubaker v. Okeson , 36 Pa. 519 ( 1860 )

The opinion of the court was delivered by

Strong, J.

The original liability of Okeson to pay the debt was established, and indeed it was not denied. It was, therefore, incumbent upon him to show affirmatively his discharge from that liability. This he attempted to do, by evidence that he was a surety, and that the creditor had told him on one occasion that Sherlock, the principal debtor, was good enough for the money; that he did not want him (Okeson); that he had been to the West to see Sherlock ; that he had a good crop of wheat, a fine appearance for a good crop of corn, and a good stock of horses and cattle on lus farm; that he had given him time or would give him time, and that Sherlock would pay it, and that he did not want Okeson any longer. The court charged the jury that “if this conversation occurred, and it was all the conversation that occurred between the parties, and Okeson was the surety of Sherlock, it would discharge Okeson, and be an available defence, on the ground that it would lull the surety into security, and prevent him from taking any action for his own security or indemnity, and it would be a fraud upon the surety, for the creditor, afterwards, contrary to his assurance, to call upon the surety for payment.” To this instruction the plaintiff excepted, and he has assigned it here for error.

It is noticeable, that the learned judge did not submit to the jury to find what the plaintiff intended, or what the defendant understood by the expressions, he had “given time” to Sherlock, and that “he did not want Okeson any longer.” The court construed the language of the witnesses, and took away from the jury all inquiry as to its meaning. The rule however is undoubted, that the meaning of words used in conversation, and what the parties intended to express by them, is exclusively for the jury to determine : 9 Watts 59. It is obvious, that the testimony is utterly inadequate to prove a direct and binding release of the surety. The creditor said “he did not want Okeson any longer,” but this did not amount to an agreement to discharge him, and if it did, it was entirely without consideration, and therefore inoperative.'

Nor does the expression of the creditor that he had given time to the principal debtor, necessarily amount to proof of an equitable release of the surety. It was quite possible for him to give time, without affecting in the least the liability of Okeson. Nothing short of an agreement to give time, which binds the creditor and prevents his bringing suit, will discharge the surety. Mere delay, without such a binding agreement, will not. And, if such an agreement may be inferred, from a simple declaration of the creditor, that he had given time (which we do not admit), it is not to be inferred by the court, as a presumptio juris et de jure. Whether the jury were at liberty to draw such an inference need not now be considered. How they could, certainly is not manifest, for giving time, and a contract to give time, are distinct and independent things. Proof of the existence of a subject-matter, about which a contract may be made, would seem to have no tendency to prove that one in fact had been made.

Indeed, the learned judge of the Common Pleas does not appear to have rested the defendant’s case upon either of these grounds. His view was, that the defendant was discharged, because the language of the plaintiff, alleged to have been proved, would lull him into security, and, prevent his taking any action for his own indemnity; and because it would be a fraud upon the surety, for the plaintiff afterwards to call upon him for payment. The simple meaning of this is, that the plaintiff was .estopped, not by matter of record, or by deed, but by matter in pais. The objection to it is, that there was nothing in the evidence to warrant the conclusion, that the defendant had been injured by the declarations of the plaintiff, or that he was in any worse condition than he would have been in, had those declarations never been made. Certainly, it was not for the court to say, as matter of law, that he had been injured. But it is essential to an equitable estoppel by matter in pais, that he who sets it up should show that he has been misled to his hurt: Dezell v. Odell, 3 Hill 215; Patterson v. Lytle, 1 Jones 53; Hill v. Epley, 7 Casey 334. It never yet has been held, that a declaration of the creditor that the principal debtor was good enough, that the surety was in no danger, and that the debt would be collected from the principal, without more, was sufficient to estop the creditor from proceeding against the surety. Such declarations are exceedingly common. They are often made to induce the surety to go into the contract, and they are repeated afterwards, without any design to mislead, or without being understood as a waiver of any rights. They are made and received as expressions of opinion. They neither invite confidence, nor is confidence often reposed in them. Standing alone, they will not discharge the surety.

Bank v. Klingensmith, 7 Watts 523, does not sustain the charge of the court in this case. There the creditor held a judgment against the principals and the surety; the surety called upon the creditor, and requested that an execution might be issued to seize the principals’ property about being removed; he stated that he wished to be released, and that the principal had property sufficient' within reach of an execution to pay the debt; the creditor refused compliance, stated that the principal was good enough, and that he would give the defendant clear of his endorsement; no execution was issued. There is no similarity between that case and the present. There the surety was in motion to secure himself; he had a right to insist that execution should be issued, and he did insist.’ There was proof of actual injury in withholding the execution, an execution to which the surety was entitled on his request, and the case was put upon the ground, both in the court below and in this court, that he had sustained injury, not from the declarations of the creditor, but from the withholding of the execution.

The case of Harris v. Brooks, 21 Pick. 195, relied upon by the defendant in error, is not unlike Bank v. Klingensmith. There the surety was also in motion; he called upon the creditor, and stated that if he had to pay the debt he wished to attend to it soon, as he then could get security of the principal; the creditor assured him that he (the creditor) would look to the principal for payment, and that he (the surety) need not give himself any trouble about the note, for he should not be injured. The case was put to the jury with the instruction that, if in consequence'of this assurance of the creditor, the surety omitted to take up the note and secure himself out of the property of the principal debtor, he was discharged. The defence, therefore, as in Bank v. Klingensmith, rested not in the declarations of the creditor alone, but on them and superadded evidence that there had been actual harm resulting from them to the defendant. This essential to estoppel in pais was, therefore, not wanting, as it is in' the present case. The language of Chief Justice Shaw is to be understood as applicable to the case he then had in hand, a case in which the jury had found that injury had resulted from the declarations of the creditor, and the only question therefore was, whether they were such as to warrant his relying upon them, and guiding his action by them. Surely, without having been the occasion of injury to the defendant, the creditor cannot be guilty of a fraud upon him, by calling upon him to pay a debt which he has promised to pay, and no declaration which has not, in fact, influenced his- conduct can have done the surety any harm. In losing sight of this, consists the error of the charge, and for this reason, pointed out in both the assignments of error, the judgment must be reversed.

Judgment reversed, and a venire de novo awarded.