Garrett v. Ferguson's Adm'rs

• Decision Date: 31 January 1845
• Citation: 9 Mo. 125
• Parties: GARRETT ET AL. v. FERGUSON'S ADM'RS.
• Court: Missouri Supreme Court

9 Mo. 125

GARRETT ET AL.

v.FERGUSON'S ADM'RS.

Supreme Court of Missouri.

January Term, 1845.

APPEAL FROM ST. LOUIS COURT OF COMMON PLEAS.

GAMBLE and BATES, for Appellants The appellants make the following points: 1st. That where a bond or note is made by several persons, one of whom is principal and the others securities, and the obligee or payee, makes an agreement with the principal, for a consideration, to extend the time of payment without the consent of the securities, this discharges the securities. It cannot be necessary to cite authorities on this point. 2nd. That where the form of the note does not show the relation of the parties as principals and securities, it is competent for the securities to show it by parol evidence. Wells v. Girling, 4 Eng. Com. L. R. 264; Paine v. Pachard, 13 Johns. R. 175, King v. Baldwin, 17 Johns. R. 399; 4 N. Hamp. R. 221. 3rd. That Potterfield was in this case a competent witness for the other defendants upon the defense set up. It is manifest that he was not interested in the result of the trial, and being disinterested, he was a competent witness, although a party on the record. Worral v. Jones and others, 20 Eng Com. L. R. 177; 6 Monroe, 617; 6 Bing. 306. There is probably no question in the law which has more frequently been discussed and decided in courts, than the competency of parties to the record as witnesses. In many of the cases the exclusion of the witness is put upon the ground of policy, in others of interest; in some, the two grounds are combined. The more recent decisions refer the question entirely to the interest of the witness; and where he is disinterested, he is admitted. 4th. Upon the case as acted upon by the court, there should have been a new trial granted.

GEYER and DAYTON, for Appellees. The questions arising in this case are: 1st. Was Potterfield a competent witness? 2nd. Was the evidence offered to be given by him competent? In relation to the first question, the counsel for the appellees contend that Potterfield was incompetent. First: because he was a party to the record. Second: because he was directly interested in the event of the issues to be tried.

NAPTON, J.

This was an action of assumpsit brought by the appellees upon a promissory note executed by the appellants, and one Daniel Potterfield, to the intestate, Th. J. Ferguson.

The note was as follows:

“$1000. Twelve months after date, for value received, we, or either of us, promise to pay Th. J. Ferguson, or order, one thousand dollars, bearing ten per cent. interest per annum. Given under our hands, this 1st day of July, 1840.

DANIEL POTTERFIELD,

TH. B. CLAGGETT,

ENOS GARRETT,

ENOS GARRETT, JR.”

After a judgment by default against Potterfield, the appellants appeared and pleaded, first, non-assumpsit; second, that they executed the note as security, with the knowledge of Ferguson, and that after the making of the note, Ferguson, in consideration that Potterfield executed his note to him for eighty dollars, did agree with Potterfield to give him twelve months further time for the payment of the said note sued on, without the consent of the defendants; and third, that usury had been received on said note.

Upon the trial of the issues, the defendants produced Potterfield as a witness, who stated that he was principal, and the appellants were securities in the note sued; whereupon objections were made to the competency of the witness. The witness then produced a release from Claggett and from the Garretts, discharging said Potterfield from all liability to them for costs. He also acknowledged his indebtedness to the appellees to the amount of the note sued on, and interest thereon, and desired the court to enter up judgment against him for said amount. The court sustained the objections to the competency of the testimony, and to the competency of the witness, and refused to enter up judgment against said Potterfield, on his confession, in open court; and thereupon no other testimony being offered or given in the issue, a verdict was rendered against the defendants, and the court assessed the damages against Potterfield; and one judgment was thereupon accordingly rendered against them all.

Two questions are presented by the record: first, was parol evidence competent to show that Potterfield was principal, and Claggett and others securities in the note sued on? and, second, if so, was Potterfield a competent witness to establish this?

First. It has been questioned, whether in an action on a bond, in which the obligors are bound jointly and severally, it could be shown in a court of law, who were principals, and who were securities; the relation of the parties not appearing upon the face of the instrument. In the case of Sprigg v. Bank of Mount Pleasant, 10 Peters, 266, Mr. Justice Thompson declared the rule to be well settled, that where principal and security are bound jointly and severally in a bond, although there is no express admission on the face of the instrument that all are principals, yet the surety cannot aver by pleading that he is surety only. In Rees v. Bennington, 2 Vesey, Jr., 542, Lord Loughborough said: that in such cases, the form of the security forced them into equity; that at law the security could not aver by pleading, that he was bound as security; but that if he could establish that at law; the rule by which his liability was to be determined, was a legal one. It will be remarked, however, that in the first mentioned case, the opinion of the judge was merely thrown out arguendo, and the point did not arise in the cause, it appearing upon the face of the instrument there sued on, that the obligors all executed them as principals. In the case of Rees v. Bennington, there was an application for an injunction to stay proceedings upon a judgment at law, against the surety, because the obligee had taken notes from the principal, without the knowledge of the surety, and given the principal further time. Judge Spencer, in King v. Baldwin, 17 Johns. R. 399, alluding to this opinion of Lord Loughborough, expresses his dissent in the following language: “We would not assent to his Lordship's proposition, that the fact of a man's being bound as security, could not be inquired into at law, if it became material to a legal inquiry, for we understand the rules of evidence to be the same in both courts; and we in vain sought for the principle, which allowed the inquiry in a court of equity, and denied it to a court of law; and we therefore came to the conclusion, that the defense being a legal one, it necessarily followed from the general rules of evidence being alike in both courts, that a court of law was competent to administer relief, and to examine all the facts necessary to relief.” In Craythorne v. Swinburn, 14 Vesey, Jr., 171 Lord Eldon speaking of an obligation in...