Majority
Headnote
Promissory note — signed with individual names followed respectively by “ Prest." and “Treas.” — the liability is individual and not corporate — election of remedies — several liability on a contract — a recovery against one debtor not a discharge to his co-debtors.This action was brought to recover against the appellants individually upon a promissory note, indorsed to the respondent by H. Stuetzer & Co., of which the following- is a copy:
“ $1,500. Jersey City, N. J., Deo. 2, 1892.
% ^ ^ 'I f
“ Three months after date we promise to pay to the order of II. Stuetzer & Co., Fifteen hundred & Dollars, payable at First National Bank of Jersey City. Yalue Received.
“ WM. T. WALLIS, Prest.
“No. 1027. GEO. T. SMITH, TreasP
(Indorsed): “Pay First Nat’l Bank, Brooklyn, or. order, H. Stuetzer & Co.”
The note was given to Stuetzer & Go. for- work done for the Wallis Iron Works, of which corporation the appellant Wallis was the president and the appellant Smith the treasurer.
Nothing was collected on said judgment, and, before the commencement of this action, it was, by an order of the court, vacated and the action was discontinued.
The note was discounted for the benefit of and upon the credit of Stuetzer & Co., and, at the time of discounting it, the bank had no knowledge of the circumstances surrounding its execution and delivery, or what it was given for, but the president of the bank testified that he supposed it was the note of the Wallis Iron Works.
In another action this court decided upon the same facts that a note between the same parties was, on its face, the obligation of the ajipellants, and not of the Wallis Iron Works. (First National Bank v. Stuetzer, 80 Hun, 435 .)
That decision rested upon the authority of the case of The Casco National Bank v. Clark ( 139 N. Y. 307 ), from which it appears impossible to distinguish it. .
The appellants now claim, however, that by suing the Wallis Iron Works the respondent exercised a right of election between inconsistent remedies, and is, therefore, barred from maintaining this action against the appellants.
The general rule is well settled that when a party has grounds to bring different actions arising out of the same state of facts against different persons, and the maintenance of one necessitates the alleT gation of a fact inconsistent with the maintenance of another, he is bound by his election, and cannot proceed against the other, although the judgment obtained in the first action fails to afford relief.
But after a careful examination of the numerous cases cited in the appellants’ brief, I have failed to find one that holds that when two or more persons are severally liable to another, by suing one the creditor thereby discharges all the others.
The rule is established as to all that class of actions which come under the head of torts, that one tort feasor is not discharged by an action against his co-tort feasor. Nothing short of satisfaction for the injury will relieve all the wrongdoers from liability. (Livingston v. Bishop, 1 Johns. 290 .)
In Beymer v. Bonsall ( 79 Penn. St. 298 ) it was held'that neither the -agent nor principal, when both were liable, would be discharged short of satisfaction of the debt. This case was cited with approval in Cobb v. Knapp ( 71 N. Y. 348 ), the chief judge saying that the commencement of an action against the principal would not be conclusive of an election by the creditor to hold him responsible only.
These authorities sustain the judgment appealed from, and it must be affirmed-, with costs.
Pratt and Dykman, JJ., concurred.
Judgment and order affirmed, with costs.
Cases cited
- Casco National Bank of Portland v. Clark 139 N. Y. 307 p. 378
- Livingston v. Bishop 1 Johns. 290 p. 378
- Cobb v. Knapp 71 N. Y. 348 p. 379