Pinney v. Bugbee , 13 Vt. 623 ( 1841 )

The opinion of the court was delivered by

Collamer, J.

The defendant, and Kimball, and Nichols executed the notes in question, with other notes, all as principals, jointly and severally to McGregor, or order, who sues in the plaintiff’s name as indorsee. If the defendant cannot succeed in his defence, Kimball is bound to contribute to the payment of the cost, as the defendant was under no prior or paramount obligation to pay anterior to Kimball. The cost is no more- the result of the defendant’s neglect to pay than that of Kimball. Kimball is, therefore, directly interested in the result of the suit, and is inadmissible as a witness for the defendant.

After these notes were given, Nichols, for a valuable consideration, agreed to indemnify the defendant therefrom, but this was unknown to the plaintiff. Afterwards Nichols delivered the plaintiff notes against other persons, the avails of which, when collected, he agreed to apply on these notes, but afterwards, on the same day, by agreement with Nichols, they were differently applied. All this was without the knowledge of the defendant. The plaintiff had the right so to deal with Nichols, unless it was in bad faith, and none can be imputed to him until informed of Nichols’ agreement with the defendant. The notes left by Nichols were his property, subject to his own disposal and control.

It appears that Kimball became bound to pay one half the notes to McGregor, and he delivered him certain notes for which he gave a receipt, therein agreeing if those notes were paid, he was to indorse the half of his notes, so to be paid by Kimball, satisfied. It seems the court below decided that this amounted to an agreement, by McGregor, to delay on his notes, until the notes so received by him of Kimball became due, and his right of action was thereby suspended. It is extremely questionable whether, from the receipt given by McGregor, any agreement for delay can be fairly extracted, but, if so, it was but an agreement with Kimball, and entirely concerned his half. An agreement never to pursue Kimball would constitute no defence for this defendant, unless there were a release, under seal, executed; (2 Vt. R. 209,) much less will a contract for temporary delay. It would be giving a very forced and dangerous construction and effect to that receipt, to hold that McGregor had deprived himself of the power, not only to pursue Kimball, but had also lost the power to collect of the defendant, or Nichols, the other part of said notes. It may be said if there was a contract to wait on Kimball for his half, and the plaintiff is permitted to pursue the defendant, and he pays, then the defendant may pursue Kimball and so the contract may be violated. The same might be said of every case where a creditor receives'part from one joint contractor, and agrees to pursue him no further,yet,that is always ruled to be no release of the other debtors, and no defence to any action on the debt. Even the party himself, with whom the contract is so made, cannot use it as a defence to any action in which his name is necessarily used to recovér judgment, in order to collect the debt of the other debtors. 2 Brod. &. Bing. 38. 6 Com. Law R. 11.

Judgment reversed.