Lee v. Clark — 1 Hill & Den. 56

Majority

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Lee and others vs. Clark, impleaded with Parmenter & Green.

Headnote

P., together with C. & G., his sureties, gave a bond to the plaintiffs, which, after reciting a written contract of P. and the plaintiffs with B.', and that the plaintiffs and P. jointly owed B. a sum of money thereon, was conditioned that P. should pay that money, or save the plaintiffs harmless, &e. Afterward, B. sued P. and the plaintiffs for the money, who put the cause at issue, suffered an inquest to be taken against them at the circuit; and then the plaintiffs, before judgment, settled with B., giving their negotiable note for the amount of the verdict and B.’s taxable costs, which he received in full satisfaction. Held, that P., not only, but the sureties, were liable on the bond for the amount of the recovery and B.’s taxable costs.

Held, also, that the verdict, proved by the circuit roll and clerk’s minutes of trial, was admissible against the sureties, as well as P., to show the amount of damages ; and this, though the sureties had no notice of that suit.

Where parties, whether principal or sureties, stipulate to pay a third person, or indemnify the debtor, a verdict, against the latter, by reason of their default, is at least prima facie, not to say conclusive evidence against them, without their having been notified of the former suit.

The plaintiffs’ negotiable note, given and accepted in full satisfaction of B.’s re-. oovery and costs, was equivalent to a cash payment by them.

So, semble, had the note not been negotiable in its character.

The recital in the bond of the contract with B. as having been executed by him, was primary, and, it seems, conclusive evidence against the obligees, of B.’s execution of it; thus superseding the necessity of proving that fact, in an action against P. and his sureties on the bond; and this, though tile contract, when produced, purported to have been signed by another as attorney for B.

Debt on bond, tried at the Rensselaer circuit, March 16, 1840, before Cushman, C. Judge. The bond bore date April 7th, 1838, and was in the penalty of |1000, with a condition reciting, that the plaintiffs had, on the day of the date, assigned to Parmenter their interest in a contract with J. S. Beekman, to purchase lot 409 in the Paradox tract, for $337, on which agreement a certain sum was due from the plaintiffs and said Parmenter jointly; the agreement being executed by the said Beekman to the said plaintiffs and Parmenter, and dated the 18th September, 1834. The condition of the bond then provided, that Parmenter should pay the

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sum remaining due to Beekman, or save the plaintiffs harmless from the said agreement. Clark and Green were sureties for Parmenter in the bond; but Clark alone defended this suit.

After proof of the bond, the plaintiffs’ counsel offered in evidence the circuit roll and clerk’s minutes of trial, showing a verdict, on inquest taken at the Rensselaer circuit, March 19th, 1839, in a- suit by Beekman against the plaintiffs and Parmenter, on a certain sealed instrument afterwards given in evidence. ’ The damages in that suit were assessed at $728,57. The evidence was objected to as not admissible or competent to show the amount of damages, but was received. <

The plaintiffs’ counsel then produced and offered an agreement, corresponding with that recited in the bond, signed and sealed by the plaintiffs and Parmenter; but the form of signature for Beekman was, “ John S. Beekman, by his attorney, George Webster, [l. s.]” Proof of its execution by the now plaintiffs and Parmenter was given, and the signature of Webster was proved, but his authority to execute was not shown; and for want of this, the defendants’ counsel objected, but the objection was overruled.

The plaintiffs’ counsel then offered in evidence a taxed bill of Beekman’s costs, in the suit against them and Parmenter. The testimony was objected to as inadmissible against Clark, but received.

It appeared that the now plaintiffs had settled the verdict in favor of Beekman, and the said costs, by giving their negotiable promissory note' to Beekman’s attorney, who, with the assent of Beekman, received the same in full satisfaction; and this was done- before -judgment. In that suit, no proof of the execution of the agreement by Beekman was given, except evidence of the handwriting of Webster.

The defendants’ counsel moved for a nonsuit, on the following grounds: 1. That there was no proof of the plaintiffs having paid any money on the Beekman contract ; 2. That there was no proof that the defendant Clark had

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notice of the suit by Beekman; 3. That Clark, being a surety, was merely bound to save the plaintiffs harmless; or, at most, was liable for nominal damages only, till something was actually paid; 4. That Clark had no notice of the former suit, nor had the plaintiffs defended it, but suffered a verdict to pass on insufficient proof.

The motion was denied—the judge deciding that the plaintiffs were entitled to their verdict for the said damages recovered, and Beekman’s costs. Verdict accordingly.

The defendants’ counsel having excepted to the above decisions, respectively, now moved for a new trial on a bill of exceptions.

S. Stevens, for plaintiffs.

J. Pearson, for defendants.

There can be no doubt that the proof of the verdict, was admissible, to show the amount of damages. The suit was stopped at that stage by the now plaintiffs giving their note forthe amount, which was taken in full satisfaction and discharge. A negotiable note so given and accepted, is equivalent to the payment of cash. So it would now probably be holden of a note not negotiable; but no objection was taken on this distinction.

The defendants were estopped to deny that Beekman executed the agreement by Webster, his attorney. The agreement was definitely recited in the bond as having been executed by him; and such a recital is primary proof of the verity of the agreement as against the defendants. It also shows that the now plaintiffs properly suffered the verdict in the former suit to.pass against them.

No notice of the former suit was necessary. The condition' of the bond was to pay, or save the plaintiffs harmless. Where parties, principals or sureties, stipulate for an indemnity in this form, a verdict recovered by reason of their default, is at least frima facie, not to say .conclusive evidence against them, though they 'had no notice. (Duffield

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v. Scott, 3 T. R. 374.) Evidence respecting the suit was not necessary, except for the purpose of recovering the costs. The default of the defendants in not making payment, and actual payment by the plaintiffs, were otherwise proved.

I do not go over the cases which sustain the views we take; they were cited in the corase of the argument. Duffield v. Scott is full to the merits of the plaintiffs’ claim; and the technical questions are of common occurrence, and perfectly well settled.

' New trial denied.