Griffith v. Furry

Walker, J. The note sued upon was excluded under the special count, because of a variance. Its execution by the defendant served with process, was proved, and it was read in evidence, under the common counts, to which exceptions were taken. Judgment was rendered in favor of the plaintiff, from which defendant appeals, and assigns for error the admission of the note in evidence, without proof of its execution by both defendants.

The note was properly rejected, under the special count. It described a note, drawing ten per cent, interest, whilst that produced and offered in evidence drew but six. The addition of the words “ten per cent.” at the end of the note, are in their connection without any meaning. They are added after the note is complete in all of its parts. Nor can it be determined whether they were added as a mark of designation, or that the note was given for a tenth part of an entire snm, or for ten per cent, which had accrued upon some other debt, or that ten per cent, interest had been added into this note for the period it had to run. Or, it may be that the parties had designed this note to draw ten per cent, interest, and after writing thus far, have changed their agreement, and omitted to erase these words. We may as readily infer one as another of these suppositions, unless we could resort to extrinsic evidence, which is not admissible.

It is a patent ambiguity, and as such is not capable of explanation, and to admit parol evidence would vary or alter a written contract already complete and definite. This ambiguity appears in the note, and it affords no explanation. It must therefore be rejected as surplusage, and as having no meaning.

As to the other question it may be said, that it is a rule of universal application, that at the common law, the plaintiff in all actions ex contractu, must, to recover, establish his cause of action against all of the defendants. If the proof fails to show all liable, on the contract described in the pleadings, he must fail to recover. The rule in actions for torts, is different. If the rules of evidence are not changed by our practice act, which allows a recovery against a defendant served with process, whilst others are not, then the note was improperly admitted. The statute does not seem to contemplate any change in the rules of evidence, but simply to authorize a recovery against such defendants as were served. The defendants are jointly sued, a joint cause of action is described, and no reason is perceived why the allegata and probata should not correspond, as though both defendants had been served.

This enactment does not authorize a plaintiff to sever the defendants on a joint liability, but only permits a several recovery, on a failure to procure service on all of the defendants. The proof should be the same as if all were served, before a recovery can be had against any of the defendants. The plaintiff, to recover, must make out his cause of action as laid in his declaration. If it were not so, the plaintiff might recover on a several claim, against the defendant upon whom there is service, as well as upon the joint claim, and might then by scire facias make the other defendant a party to the judgment, if not in whole, at least in part. If only in part, it would present the anomaly of a judgment partly joint and partly several. If he could he made a party to the entire judgment, then he would become liable for his co-defendant’s separate liability. If such a judgment were recovered, and was not altogether joint, it would violate the practice requiring all judgments to be a unit. The legislature could not have designed such a change in the practice. The execution of the note not having been properly proved, it was improperly received in evidence, and the judgment mnstbe reversed, and the cause remanded.

Judgment reversed.