McCole v. Beattie , 51 Vt. 265 ( 1878 )

The opinion of the court was delivered by

Barrett, J.

McCole, the plaintiff, and Abbott were co-sureties for Beattie on his note to the bank. That note was delivered up to McCole as paid, upon the receipt by the bank of a note signed by McCole payable to Abbott, and by him indorsed. By the bank the transaction was treated as a payment of the note of Beattie ; and we so regard it. It was not a joint payment by McCole and Abbott, as it would have been if they had been joint makers of the note. It was McCole’s note, as maker, and his liability upon it was absolute, direct, and unconditional. Abbott, as indorser, assumed a liability to pay the note, on condition that McCole did not, when duly presented and thereupon duly protested and notice given. The liability of each was several, and entirely different in legal quality, and, from the nature of the case, could not be joint. So a joint action by McCole and Abbott could not be maintained against Beattie for the money paid. The payment of the Beattie note to the bank was made by the note of McCole. If Abbott should have McCole’s note to pay as indorser, his right of reimbursement would be against McCole, and not against Beattie. This results from the transaction between Me-Cole and Abbott, as the result of which McCole paid the Beattie note to the bank. That transaction ended Abbott’s liability as surety for Beattie, and ended all privity between Abbott and Beattie resulting from the relation of surety which Abbott had theretofore sustained to Beattie. McCole, by some arrangement with Abbott, takes on himself the payment of that Beattie note, and thereby absolves Abbott from all liability as surety for Beattie. Thereafter the matter stands upon a privity solely between McCole and Abbott, without recourse to Beattie by Abbott. Beattie is therefore not in danger of any come-back by Abbott, in case Abbott should have to pay anything by reason of his indorsement of McCole’s note, which the bank had taken in payment of the Beattie note.

The only remaining question is, whether the Beattie note was paid before this suit was commenced. The service of the writ was the commencement of this suit. That was begun about half past four o’clock P. M. November 29, 1876. About noon of that day Abbott took said note of McCole, which, with Abbott’s indorsement, was taken by the bank in payment of the Beattie note. Upon the facts stated in the exceptions, it was the province of Abbott to take said note of McCole for the purpose for which McCole gave it to him, and when the bank adopted the act of Abbott, it became effectual, the same as if McCole had transacted directly with the bank, instead of transacting through Abbott. The fact that the bank was not absolutely bound because Abbott had so taken McCole’s note, and could have rejected it if they had seen fit to do so, is not decisive. Abbott was director, and had acted by request of the other directors in looking after the business and interests of the bank in his vicinity. This .fell within the indefinite terms of his agency, and found countenance in the ratification of all his previous acts. It was at least questionable, under such an agency, by what particular acts the bank would be conclusively bound. There was a kind of undefined margin within which, when an act had been performed, the adoption of it by the bank would make it the act of the bank, the same as if done directly by the bank. The act which operated the payment of the Beattie note by McCole was done before the commencement of this suit, and, in fact, took effect between the parties four days before the suit was brought.

As the defendant is safe against any liability except to McCole, on, his, the defendant’s note, on which McCole and Abbott were his sureties to the bank, he stands for his defence of this suit upon a naked technicality. He is liable by reason of that suretyship, and the present defence is virtually as bald of any substantial virtue as a plea in abatement. We cannot strain a point to maintain such a defence.

Judgment affirmed.