Carpenter v. Kee , 24 Tenn. 585 ( 1845 )

Turley, J.

delivered the opinion of the court.

This is a bill filed by the complainant to be relieved against a judgment obtained against him and others by John M. Kee, one of the defendants. The causes assigned for asking the relief are, that the complainant became bound for the debt upon which the judgment was rendered as surety for Spencer Jackson; that he was induced so to bind himself upon the express promise that Jackson was to confess a judgment on the note and stay it by a responsible person, which was never done; and upon the ground of usury in the transaction.

That there was usury, defendant Kee admits; but alledges that he released the whole amount thereof upon the execution-before the filing of the bill; and the only question left for consideration is, whether the failure of defendant Jackson to confess a judgment and stay it as he promised .to do at the time he procured the complainant to become his surety, constitutes a good equitable defence against the judgment; and we are of opinion that it does not. The promise on the part of Jackson was held out as matter of inducement to procure Carpenter’s responsibility; and it may be that it encouraged him to risk his liability; but this was done by the defendant Jackson without agency on the part of Kee, and. there is no pretence that it constituted a condition precedent to complainant’s liability.

We see no reason for supposing that Jackson did not honestly intend at the time to do what he promised; and his failure to do so is a mere breach of such promise, without fraud on his part. Certainly the defendant Kee had no power to- compel him to confess the judgment and stay it; and this not having been done, he in a reasonable time commenced suit and obtained the judgment complained of.'

The complainant has trusted to the promise of Jackson, has been disappointed in its performance, and upon every principle must abide the loss.

Decree affirmed.