President, Directors & Co. of Claremont Bank v. Wood , 10 Vt. 582 ( 1838 )

The opinion of the Court was delivered by

Royce, J.

-It appears to be the settled law of New Hamps shire, that a co-signer of a promissory note, in common form, shall be allowed to prove that, as between himself and the other signers, he was but a surety, and that this fact, if sea? sonably made known to thp creditor, will entitle such a party to avail himself of all the established rights of a surety. And as the note now in question was expressly made payable ip that state, we are bound to give effect to this law, go far §§ if shall appear to be applicable.

Looking to the tendency of the evidence given on trial, and considering the instructions under which the jury acted, we must treat it as established by the verdict, that this note was discounted for the benefit of the other .signers, and not of Judd ; that in relation to them he was in fact a surety | that the plaintiffs were apprized of this, and that repeated delays of payment were granted, in virtue of new stipulation# between the plaintiffs and the other signers,to which the assen.t of Judd does not appear. It must follow that his liability became extinguished by these after transactions, unless such .a result was prevented by thp peculiar terms pf his ■ em gagempnt.

The language of the note is We, each as principal, jointly and severally promise to pay ” &c. It could not have been the object of these expressions to signify merely, that each signer assumed the liability .qf a principal in the first instance; for such a liability is always incurred by the ress pective signers of promissory notes in ordinary cases, even though one of them should affix the word surety to his signa-,ture. The reason is, that they all promise in the same terms, which must have the same import and effept as applied tq each of thp signers. Another motiye is sufficiently appa? rent. As the plaintiffs would have been bound to respect the rights of Judd, as a surety,had these words been omitted, the evident design of their introduction was, on the one side, to avoid the embarrassments of such an obligation, .and,on thg other, to waive the right of insisting upon it. And since Judd has seen fit expressly to avow himself a principal in the note, and thereby, so far as the plaintiffs were concerned, to renounce the character of a surety with the privileges incident to it, we are not at liberty to absolve him from the consequences. To hold him still entitled to those benefits, which he openly disclaimed at the time of entering- into the contract, would be to vary and control its intended operation, and, in effect, to enforce a contract which the parties never made*

Judgment of county court reversed.