Arbuckle v. Templeton
| Decision Date | 22 December 1892 |
| Citation | 25 A. 1095,65 Vt. 205 |
| Parties | BETSEY H. ARBUCKLE v. CHARLES TEMPLETON |
| Court | Vermont Supreme Court |
GENERAL TERM, 1892
General assumpsit. Plea, the general issue and statute of limitations. Trial by jury at the September term, Washington county, 1891, START, J., presiding. Verdict and judgment for the plaintiff. The defendant excepts. The opinion sufficiently states the points raised and decided.
Judgment reversed and cause remanded.
S C. Shurtleff for the defendant.
This is general assumpsit. Defendant and one Mallory signed a note to the plaintiff that reads, "For value received I promise to pay," etc. This, in legal effect is a joint and several note.
Plaintiff testified that the defendant did not want the money himself, but said he knew of a person who did want it, and that she asked him if it was one with whom he would sign, and he said it was, and that afterwards Mallory came to her house with the note, and she let him have the money. No claim was made that the defendant ever had any of the money. It thus appears that the defendant was in fact a surety, and that the plaintiff knew it when she let the money go; and the question is, whether recovery can be had against him on the common counts. The plaintiff claims that it can, for that to her the defendant stands a principal, because such is the legal effect of his contract, and that therefore he cannot be heard to say that he is a surety, although he is such in fact.
But this position is not tenable. When each signer expressly promises as principal, he is taken to have waived thereby the rights of a surety as far as the interpretation and the enforcement of the contract is concerned, although he may be in fact a surety. Claremont Bank v. Wood, 10 Vt. 582; Benedict v. Cox, 52 Vt. 247. But even this is not so when a signer affixes the word surety to his name, for that is regarded as notice to the holder of the relation in which he stands, and that he claims the benefit of that relation, and does not waive it. People's Bank v. Pearsons, 30 Vt. 711.
But although a note does not show that a signer is a surety, yet, if by its terms he has not waived the rights incident to that relation, he may show as against the payee that he is a surety if the payee knew it when the note was given; and a mere joint and several note is held not to be such a waiver. Admr. of Wilson v. Green, 25 Vt. 450; Bank of St. Albans v. Smith, 30 Vt. 148; Hubbard v. Gurney, 64 N.Y. 457; Grafton Bank v. Kent, 4 N.H. 221; (17 Am. Dec. 414 and note); Dickerson v. Board of Commissioners of Ripley County, 6 Ind. 128; (63 Am. Dec. 373).
No authorities need be cited to show that general assumpsit cannot be maintained against a surety.
The note, when produced on trial, had this indorsement upon it: The question was whether the defendant gave that money to a Mr. Willard, who handed it to the plaintiff, and was dead. If defendant did furnish the money the note was not outlawed as to him, otherwise it was. It was error to allow the indorsement to go to the jury, because, if for no other reason, it contained a statement that the money came from the defendant, which, if true, was of controlling importance, but of the truth of which the plaintiff, who wrote the indorsement, had no knowledge to which she could properly testify. Barber v. Bennett, 62 Vt. 50, 19 A. 978.
Before suit was brought the plaintiff showed this note to Mr. Shurtleff, now the defendant's attorney, and consulted him as to whether she could collect it of the defendant, and he gave her his opinion. The defendant now called Mr. Shurtleff as a witness, and offered to prove by him that when the note was thus shown to him said indorsement did not contain the statement that the money was received of the defendant; to which the plaintiff objected, and the testimony was excluded. It is claimed that this is error, for that the witness was not called to disclose what the plaintiff showed him, but to testify only to what he observed in respect of the state of the indorsement. But we think this was not error.
The general rule respecting privileged communications between attorney and client is well understood. The only difficulty lies in determining what comes within it. In Crosby v. Berger, 11 Paige 377, (42 Am. Dec. 117), Chancellor Walworth says it is a mistake to suppose that everything is privileged that comes to the knowledge of one while acting as attorney; that the privilege extends only to information derived from the client as such, either by oral communications, or from books or papers shown him by his client or placed in his hands in his character of attorney.
Dietrich v. Mitchell, 43 Ill. 40, (92 Am. Dec. 99), was assumpsit by Mitchell against Dietrich as guarantor of a promissory note. Dietrich was payee of the note, and indorsed it, but over his name, in a different handwriting, was written an assignment and a guaranty, and he denied the guaranty. The defendant called an attorney as a witness, who testified that he brought a former suit on this note, and that when the note was in his hands the name of Dietrich, the defendant, was indorsed on it, but that no guaranty was written above it. This evidence was objected to as falling within the rule of privileged communications between attorney and client, and the objection was sustained. In Brown v. Payson, 6 N.H. 443, it was adjudged that an attorney could not be required to testify concerning the state of a written instrument at the time he received it from his client for the purpose of bringing suit upon it. So in Coveney v. Tannahill, 1 Hill 33, (37 Am. Dec. 287), it was not permitted to show by an attorney that he had seen the paper in suit in the hands of his client, or received it from him, in a different state from that in which it was at the trial. The court said there is no solid distinction between an oral statement of a fact to counsel and a communication of the same fact by delivering to him a deed or other instrument. In Wheatley v. Williams, 1 Mees & Welsb. 533, it is held that...
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