Broughton v. Fuller

In all actions ex contractu, tlie plaintiff, under the statute of 1835, may recover against one or more defendants, and the other defendants recover their costs, whether the suit be upon a contract in writing or not. If a promissory note be altered in a material point, by consent of one signer, without the consent of the other signer, it is the note of the first, but not of the other, and, if declared upon as the joint note of both, the plaintiff may recover against one, and the other recover his costs. Difference, stated as to the materiality of time, in declaring upon written contracts, between “ the date” and the time of execution.

This was an action of assumpsit on a joint note given by defendants, for fifty dollars and interest, dated September 17,1832, and made payable one year from January, next after the date. On the trial of the issue, defendants gave evidence, tending to prove, that said note was given — not to the plaintiff — but to one Ebenezer Broughton, and that the said Ebenezer Broughton died at Fort Anne, in the State of New York, before the commencement of this action. The plaintiff then offered evidence, tending to prove, that defendant, William Fuller, Jr, in March, 1833, consented to the said Ebenezer Broughton’s making said note payable to the plaintiff, by inserting the word Junior, in the body of the note; which evidence was objected to by the defendants, but admitted by the court. Whereupon, the cause being submitted, the court charged the jury, that, if they found that said alteration was made in the presence of the said Wm. Fuller, Junior, — and if his consent thereto was fully proved, they were at liberty to return a verdict against him, and in favor of the other defendant, which they accordingly did, and judgment was thereupon rendered, in favor of the plaintiff, against said William Fuller, Jr. and in favor of the other defendant against the plaintiff. To the decision of the court, admitting evidence as aforesaid, and to the charge, and judgment, William Fuller, Junior, excepted. I. This being an action on a joint note, there must be a recovery against both the defendants, or neither. II. The adding Junior to the name of the payee of the note, changed the person of the payer, so that it no longer remajned the same note, It was a material alteration, and rendered the note invalid. 2 Starkie Ev. 395 and note 1. 1 Selwyn? 334. III. The evidence for the plaintiff tended to prove a note made, executed and delivered, in March, 1833, by one of the defendants. The plaintiff, in his declaration, sets forth a joint note, “ made, executed and delivered, in September, 1832,” and the note in evidence corresponds with the description in his declaration. This evidence was inadmissable, 1. Because a note takes effect from its delivery, and not from its date — and being made a new note by the alteration, it could not be delivered before March, 1833. Woodford et use. v. Dorwin, 3 Vt. Rep. 82. 2. Because plaintiff's evidence proves a contract not set forth in his declaration — and unless the description in the declaration correspond with the evidence, the variance is fatal. 2 Phil. Ev. 1, and notea. Chitty on Bills, 531. 1 Selwyn, L17. ' IV. The note is absolute ran the face of it, and the general rule applies — that “ parol evidence is inadmissible, to contradict, vary or explain a written contract, or to show it different from what it purports to be on the face of it,” or “ to vary the promise.”' Bradley v. Anderson, 5 Vt. Rep. 152. Farnham v. Ingham et al. id. 514. V. The statute of 1835, (p. 7,) does not contravene these principles. It is there enacted, that in any action, founded on contract, any of the defendants, not a party to such contract, shall be discharged, and that the plaintiff shall, thereupon, be entitled to recover against the other defendants in such action, in the same manner, as if such action had originally been brought against such other defendants only. The object of this statute, •manifestly, is to save the rights of the plaintiff in cases where he might have maintained his original action, against a less number •of defendants than the number sued, had he originally sued ■them only. Therefore, the plaintiff can take no benefit from this statute, unless he could originally have maintained his action against Wm. Fuller, Jr. only — and had he done so, the above named rule, restraining parol evidence, would have excluded the testimony. This construction restrains the statute to its proper use, and saves the principles of the common law. Does this case come within the provision of tire statute of 1835 2 To answer this question, we have only to look at the note, as the several note of ffm. Fuller, Jr. If the note had been given by him alone, and the alteration had been made after-wards, by his consent, would it, or would it not have been a new contract, from the- alteration ? If it is not a new contract, then, most clearly, John Fuller is liable on the original note. But no one will pretend this, as it would be repugnant to every principle of law, to say, that he should be indebted to the plaintiff without his own assent, either express or implied. Then, if the obligation is altered so far as to affect the noteas to John Fuller, surely it becomes a new contract as to William Fuller, when we prove his assent to the alteration. If so, it comes strictly within the statute provision.