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Opinion of the Court, per PECKHAM, J.
could not be held in equity. In Other v. Iveson (3 Drew. Ch. R., 177), where a check was given, signed by three persons one of them a surety, as in the case at bar, and the money was advanced upon his credit-upon the death of the surety, his co-signers surviving, held that his estate was absolutely discharged. To the same effect is Richardson v. Horton Beav., 185).
United States v. Price (9 How. U. S. R., 92). This was a case of a joint and several bond. But judgment had been recovered against all as joint debtors, and then the surety died; and it was held that plaintiffs could not proceed in equity against his estate. They had elected to hold them as joint debtors, and the surety's estate could not be made liable severally after a joint judgment. There is a dissenting opinion by Justice WOODBURY, but no difference as to this principle.
Jones v. Beach (2 De Gex, M. & G., 886) is directly in point. There the claim was upon a joint promissory note, and the surety dying, his estate was held discharged, both at law and in equity.
Wilmer v. Currey (2 De Gex, & S., 347) went still further, and held representatives of deceased not liable on a joint bond, though the joint obligors had been partners with the obligee, and the bond was given on the dissolution of the firm. The vice-chancellor held that the liability of the representatives was different under the deed from what it was before. The representatives, therefore, not liable under the deed; but party remitted to his remedy for liability prior to the joint deed.
In Carpenter v. Provoost (2 Sand. Sup. Ct. R., 537) the court, in an opinion by Mr. Justice CAMPBELL, decided the principle of non-liability of a surety's representatives, either at law or in equity, upon a joint obligation.
The same principle is recognized in Bradly v. Burwell, supra, by Mr. Justice JEWETT. There are many other cases holding the same rule.
Thorpe v. Jackson (2 Younge & Coll., Ex'r in Eq., 553) is in entire accord as to the point here involved.
Statement of case.
If there had been fraud or mistake as to the note—if clearly proved that the real contract intended to be signed was joint and several, and not joint merely-then equity could and would correct that as it would any other mistake. All the cases agree to this. None is pretended in the case at bar. It is claimed that the promise of the testator, prior to the making of this note, that he would promptly pay it at maturity, made it a several obligation. Two plain answers: first, that promise was merged in the note; second, the note promised the same jointly with Lahens. There is no pretence that he ever promised to sign any other paper.
The basis or principle upon which joint obligations have been held in the books to be, also, several in equity, is that the debt secured was owed irrespective of the joint obligation; that all were principal debtors; and they must be held to have intended a several as well as a joint liability. That rule has never been applied to a surety. His obligation is the measure of his liability.
But the rule as to principals has been modified as above stated in the later English cases.
Judgment should be reversed and new trial granted, costs to abide event.
THOMAS DENT et al., Respondents, v. THE NORTH AMERICAN
Where, after the receipt of a written statement of the terms of sale of personal property, the vendee takes possession of the property without any dissent, this constitutes an acceptance of and acquiescence in the terms, and the statement becomes the contract of sale.
A resolution of the board of directors of a corporation, ratifying the act of one acting as its agent, is competent evidence of the authority of the agent.
Where the language of a written contract is obscure and ambiguous, facts existing at the time of the making of the contract may be properly considered, for the purpose of interpreting the language; but no evidence
Statement of case.
of the language employed by the parties in making the contract can be resorted to except that furnished by the written contract itself.
(Argued April 24, 1872; decided May 21, 1872.)
APPEAL from judgment of the General Term of the Supreme Court in the first judicial department, affirming a judgment in favor of plaintiffs entered upon the report of a referee.
The action was brought to recover a balance due upon a promissory note made by defendant.
The answer set up a counter-claim, in substance, that the plaintiffs, on the 11th day of December, 1866, in consideration of the said note, and of other securities, agreed to sell and deliver possession to the defendant the steamship Paonshon, then lying in the city of New York, and agreed to complete her hull, engines and boilers according to certain contracts, and that they failed to do so, and claimed, as damages, $20,000.
The steamship Paonshon had been built for the plaintiffs, and on the 11th September, 1866, was nearly completed; the vessel was then lying at the foot of Eighth street, East river. On that day negotiations for the sale and purchase were had by Mr. Pickering Clarke, of the firm of Dehon, Clarke & Bridges, on behalf of the plaintiffs, and Mr. William H. Webb, the president of the defendant's company. The terms of sale being agreed upon, a letter was written on the same day by Mr. Clarke, and delivered to and accepted by the defendant. The letter was as follows:
"NEW YORK, September 11th, 1866. "WILLIAM H. WEBB, Esq.,
"President of the North Am. Steamship Co.,
"DEAR SIR.-This serves to state the terms and conditions upon which we have this day sold to your company the steamship or vessel known as the Paonshon, now lying at the foot of Eighth street, East river, New York. Hull of said vessel built by Simonson, and engines erected by the Neptune Iron Works.
Statement of case
"We have sold you the said Paonshon as she now lays at the foot of Eighth street, East river, and deliverable there, for the price of two hundred and eighty thousand dollars (say $280,000), payable as follows, say: Ninety thousand dollars in the full stock of the North American Steamship Company, of the same character and on the same basis as that issued to the originators of the company; and the balance, $190,000, in three separate notes of the North American Steamship Company at twelve, fifteen and eighteen months' date, respectively, say:
One note at twelve months, for
One note at eighteen months, for
Making in all the sum of.....
"And said notes to bear interest from the dates thereof at the rate of seven per cent per annum.
"As collateral security for the payment of said $190,000, you are to execute to us a first mortgage on said Paonshon, in a sum sufficient to cover the same, with the interest thereon as stated, and also to deposit with us satisfactory insurance policies, both fire and marine, for sums in the aggregate adequate to cover the full amount of the mortgage.
"The said Paonshon is to be delivered to you where she now lays, as above stated, with all now on board belonging to her included, in which are five of Trotman's patent anchors, two chain cables of 150 fathoms each, and of the size of 1 and 12 inch, with two boxes of pins, punches and keys for same.
"We would state that there may be some little work to be done about the engines, and the same may be said respecting the hull; but should the contracts with engine makers and the builder be found to provide for the completion of such work, you are to have all the benefit said contracts bestow in this regard.
"A formal bill of sale, delivery of the vessel, payment in
Statement of case.
stock and notes, execution of mortgage accompanied by insurance policies to be attended to, executed and made with all possible dispatch.
"DEHON, CLARKE & BRIDGES."
No contract was made between the parties for the sale other than is contained in the letter above referred to. Mr. Webb had received from Clarke copies of the contracts and specifications for the building of the hull and spars, and of the engines, and had visited the vessel, and had examined her to see how much work had been done according to the specifications. At the time of making the sale it was known to both parties that Boardman, Holbrook & Co., the contractors for the engine and boilers, were insolvent.
On the 23d September, 1866, at a meeting of the board of directors of the defendant's company, it was resolved that the action of the president in purchasing the Paonshon on the terms and conditions set forth in the letters of Messrs. Dehon, Clarke & Bridges, dated December 11th, 1866, and addressed to the president of this company, be approved, and said purchase confirmed and ratified.
There was unpaid upon the contract between plaintiffs and Boardman, Holbrook & Co., $3,127.74. Subsequent to the purchase Mr. Webb wrote to plaintiffs' agent, requesting them to retain this sum and hold it to defendant's credit, as indemnity to that extent for non-fulfillment of contract. Upon the trial defendant offered evidence of the parol agreement prior to the writing of the letter, which was rejected by the referee, and defendant excepted. The referee found, as conclusion of law, that by the terms of the contract of sale the plaintiffs did not undertake that the hull, engine or boiler of said steamer should be finished according to the contracts that had been made therefor, and directed judgment for the amount remaining unpaid on the note after deducting the said sum of $3,127.74.