Dygert v. Gros , 9 Barb. 506 ( 1850 )


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  • By the Court, Hand, J.

    I think the judgment entered up in favor of D. Gros, Dygert, Empie, Crouse, Dunkle, Lane, Burns, French, Bes tell and Wendell, against Warner and lies tell, on the 2d day of April, 1840, does not materially affect the rights of the parties. The avails, if any had been received, would have reduced the amount pro tanto, leaving the parties liable as before for the balance. Taking a judgment jointly, created no implied agreement that the parties would be jointly and equally liable upon any note then existing or that might be afterwards given. Then the material facts of the case seem to be, that on the 20th of August, 1838, there fell due to the Herkimer County Bank, a note made by Warner and Hestell,- indorsed by D. Gros, Dygert and Empie, for $3750, which on that day w. s dishonored; and to take up which another note was made by Warner and bles tell, dated August 30,1838, for $3000, indorsed by D. Gros, G. S. Dygert and Embie; and notes were given for the same debt, and signed and indorsed by the same parties, from time to time, until the 24th day of April, 1840, when, to take up the last one, the note in question was given. The defendant for a long time had been a prior indorser to the plaintiff, and finally became maker of the note in question. He was clearly liable to all the subsequent parties, unless- he shows something rebutting this presumption of law. The judgment, as we have already stated, has no such effect. But the defendant insists that the subsequent transactions between the parties, and the plaintiff’s admissions and promises, show that he was equally liable with the defendant. The answer to this is, want of consideration for the promise, if any were made. Prima facie the defendant was liable to the subsequent parties; and from his earliest connection with the claim, when his name appears in the place of L. Gros, down to the last note, he is a prior party to the plaintiff. Any circumstance discharging his liability as such prior party, should be clearly shown. There is no evidence that in the outset they *511agreed that their liabilities should be joint, and the parties chose their position on the first note which the defendant indorsed, and we can not know what course would have been taken with Warner and Nest ell and L. Gros, had the defendant kept clear of the matter. And that all were accommodation parties is not sufficient to change their legal rights. The prior indorsér, as well as the maker, is liable to the indorsee, and their undertaking is not joint, but separate and successive, and all the legal consequences follow. (Brown v. Mott, 7 John. 361. McDonald v. Magruder, 3 Pet. Rep. 470. Wing v. Terry, 5 Hill, 162. Phelps v. Ganow, 8 Paige, 322. Com. Bank of Lake Erie v. Norton, 1 Hill, 509. Norton v. Coons, 3 Denio, 130.) Such being the rights of the parties, the plaintiff has done nothing to change them. Even his express promise to pay one half of the judgment, without consideration, would have been void.

    The plaintiff having paid a part of the judgment, can maintain an action for money paid, laid out and expended. (Butler v.

    Wright, 2 Wend. 369.) The motion for a new trial must be denied.

    New trial denied.

Document Info

Citation Numbers: 9 Barb. 506

Judges: Hand

Filed Date: 7/1/1850

Precedential Status: Precedential

Modified Date: 1/12/2023