Neass v. Mercer , 15 Barb. 318 ( 1853 )

By the Court, T. R. Strong, J.

It is not ’necessary to rest the judgment in this case, upon the position that the plaintiff was entitled to enforce, by action, the promise of the defendant to Lee, as having been made for the plaintiff’s benefit. Upon the facts found at the circuit, it is clearly right on another ground. The plaintiff and Reading indorsed the note for the accommodation of Lee the maker; Lee loaned it to the defendant for his accommodation, upon his promise to pay it at maturity and save the indorsers harmless; and the defendant negotiated it to the bank for his own use. The note did not have inception as a valid security until it was passed to the bank. In the hands of the defendant, it could not have been made available against either of the parties to it. It was the act of the defendant in passing it, which gave it vitality, and the sole consideration for it was received by him. The debt created by negotiation of the note was therefore his debt, and both Lee and the indorsers were sureties for the payment of it. (Baker v. Martin, 3 Barb. S. C. R. 634. Wooster v. Jenkins, 3 Denio, 187. Dowe v. Schutt, 2 Id. 621. Suydam v Westfall, 4 Hill, 216. Saxton v. Peat, 2 Camp. N. P. C. 185.) Lee was surety of the defendant, by the loan to him and his promise of payment and indemnity, and the indorsers were sureties of Lee, by having indorsed for his accommodation, and as such, occupied the position of sureties for the defendant. The defendant was under obligation to Lee, by his promise, and both to him and the indorsers, in equity and justice, and as the principal debtor,-to pay the debt and protect them from harm. And this equitable, obligation to the indorsers, connected with the fact that the plaintiff was compelled to pay the debt to the bank with the costs of the suit for its collection, was a sufficient foundation for the judgment. (Butler v. Wright, 20 John. 367, 6 Wend. 284, 290. Hunt v. Amidon, 4 Hill, 345. Powers v. Ingraham, 3 Barb. S. C. R. 642. Flwood v. Deifendorf, 5 Id. 413. Peck v. Ingersoll, in court of appeals, December, 1852.) The promise to Lee was of no importance in the case. It was not necessary to entitle him to indemnity. The law would, in the absence of an express undertaking, have implied a promise by the defendant to indemnify him, and did imply a similar promise to each of the indorsers, so far as any was necessary to enable either to maintain an action against the defendant for moneys paid, on being compelled to pay the debt.. A promise, however, was not required under the code, as a basis for the action, as. in the theory of the old action of assumpsit, it was sufficient that there was an equitable obligation.

The complaint is adapted to the foregoing view of the case. It contains a claim for moneys paid for the defendant, and sets forth the facts which were proved. Thus regarding the case, Lee and Reading were competent witnesses for the plaintiff. The action was not prosecuted for their immediate benefit, upon a just construction of the first clause of § 899 of the code. That clause, in my opinion, embraces only persons who are so connected with the action as to render them virtually parties to the litigation. (Evarts v. Palmer, 7 Barb. 180,181. Weston v. Hatch, 6 How. Prac. Rep. 443. Harding v. Hodgkinson, 4 Eng. L. & E. Rep. 462. Colombine v. Penhall, 13 Adol. & El. N. S. 129. 66 Eng. Com. L. R. 128. See cases referred to in arguments of counsel. Fitch v. Bates, 11 Barb. 471.) This construction has been given to it in several cases, in this district, not reported. The witnesses named did not stand in any such relation to this action. They were not parties to the claim or obligation sought to be. enforced, or entitled to any part of the moneys which might be recovered, and no rights of theirs were involved in the action. Whatever benefit could be derived by them from a recovery by the plaintiff and a satisfaction of the judgment, would not be produced in the action, but would be a consequence of it.

Reading was probably competent as a witness, at common law. (Farmers & Mechanics’ Bank v. Griffith, 5 Hill, 476.) So also was Lee, according to Gregory v. Dodge, (14 Wend. 593,) though not, I think, on principle.

The provision of § 398 of the code being general, without any restriction, must, I think, be held to extend to actions on contracts made before the code. It does not, applied to such contracts, impair their obligation; it has reference rather to the remedy upon them; and I am satisfied the-legislature had power to make it. It does not so affect the remedy that a substantial remedy is not possessed by parties; on the contrary, I think the provision a wise one, and calculated to promote the attainment of justice rather than to work injustice. The credit to be given to a witness, is for the jury or the court, when the trial is by the court, without a jury, to determine; and when a witness is interested in a case, that fact will generally have its proper weight, in considering his testimony.

[Cayuga General Term, June 6, 1853.

Selden, Johnson and T. R. Strong, Justices.]

It was not material whether or not the answers of Lee to the interrogatories were in his handwriting; the requirement of the statute is that the commissioner “ shall cause the examination of each witness to be reduced to writing,” &c.; and I see no impropriety in procuring the witness to write his answers under the direction of the commissioner. The evidence offered on that subject was therefore properly rejected.

Judgment affirmed.