Giltinan v. Strong

• Decision Date: 03 March 1870
• Citation: 64 Pa. 242
• Parties: Giltinan <I>versus</I> Strong.
• Court: Pennsylvania Supreme Court

64 Pa. 242

Giltinan versus Strong.

Supreme Court of Pennsylvania.

February 14, 1870.

March 3, 1870.

February 14th 1870.

Before READ, AGNEW, SHARSWOOD and WILLIAMS, JJ. THOMPSON, C. J., at Nisi Prius

Error to the District Court of Philadelphia: No. 203, to July Term 1869 R. P. White (with whom was George H. Earle), for plaintiff in error.—A surety cannot be bound by a judgment in a suit in which he could not be heard, and the record against Maguire would not be evidence against Giltinan; it was strictly res inter alios: Gilbert's Law of Ev. 29; Sharswood's Starkie on Ev., § 319; 1 Taylor on Ev., § 710: 2 Id. 1429; 1 Phillips on Ev. 526; 2 Id. 133; 1 Greenl. on Ev. 527, 538; Duchess of Kingston's Case, 20 How. State Tr. 35; King v. Norman, 4 C. B. 884; Powell v. Layton, 2 N. R. 371; Griffin v. Brown, 2 Pick. 304; Pritchard v. Hitchcock, 6 M. & G. 151; Kip v. Brigham, 6 Johns. 158; Case v. Reeves, 14 Id. 79, 81; Maybe v. Avery, 18 Id. 352; Clark v. Montgomery, 2 Barb. 464; Douglass v. Howland, 24 Wend. 35; Coun v. Osgood, 15 Barb. 583; Snell v. Allen, 1 Swan (Tenn.) 208; Payne v. Coates, 1 Munf. 373; Jackson v. Veddes, 3 Johns. 8; Twambly v. Henley, 4 Mass. 441, 442; Wood v. Stephen, 1 S. & R. 175; Johnson v. Bowen, 1 Wash. R. 187; Cowles v. Harts, 3 Conn. 516; Sturgis v. Beach, 1 Id. 507; Turpin v. Thomas, 2 Hen. & Munf. 139, 147; Fletcher v. Jackson, 8 Vermt. 588; Respublica v. Davis, 3 Yeates 128; Camack v. Com'th., 5 Binn. 184; Moores' Appeals, 10 Casey 411.

The declarations of a principal to be evidence against a surety, must be made at the time and as part of the transaction in which the liability is incurred: Evans v. Bartlett, 5 Esp. 26; Smith v. Whittingham, 6 C. & P. 78; Cullen v. Newlin, Manning's Dig. N. P. 137; More v. McCullough, 5 Hill 131; Jackson v. Griswold, 4 Id. 522; The King v. Norman, 4 C. B. 883; Moores' Appeals, 10 Casey 411. The agreement was a suretyship: Allen v. Hubert, 13 Wright 260; Marburger v. Potts, 4 Harris 9.

D. W. Sellers and C. D. Freeman, for defendant in error.— In a written promise to pay the undertaking of another, the consideration of the original undertaking need not appear: Leonard v. Vildenburgh, 8 John R. 29; Shively v. Black, 9 Wright 345.

The opinion of the court was delivered, March 3d 1870, by AGNEW, J.

The memorandum signed by David Giltinan for the payment of the rent of the house in Strawberry street, related directly to the subject-matter of the action, and was not irrelevant. There being no special objection to its effect that became a matter of instruction of the court to the jury.

Under the evidence, we cannot say the writing was not sufficient to support the action. The first count in the declaration charges a direct promise of the defendant to pay the rent, and there was evidence to go to the jury in support of it. The agent of Mrs. Strong testified that the defendant asked him whether there was a tenant in the house, and said he wanted it for a friend. Both Giltinan, the defendant, and Maguire, were together when the memorandum was signed at Mrs Strong's. A few days afterwards Maguire went into possession, and Giltinan told the witness that he had put Maguire there; the evidence tended to show that the lease to Maguire was made at Giltinan's request. The language of the paper is not inconsistent with a primary liability on the part of Giltinan: "I hereby become surety for the rent of house in Strawberry St., at $1200 per annum, payable monthly from this date." No person is named or referred to as the principal, nor is the rent stated to be that of another. The language can as well apply to a primary contract of Giltinan for a lease made at his request, as to a promise to pay the debt of another. Though the word surety is used, it is obvious from the absence of any other name or reference to the debt of any other person, that the writing is not necessarily a promise to pay the debt of another. It needs parol evidence to show that it is. The evidence of direct liability carried the writing properly to the jury. Arnold v. Stedman, 9 Wright 186, is sufficient authority for this; see also Paul v. Stackhouse, 2 Wright 305; Malone v. Keenan, 8 Id. 107. If parol evidence to prove consideration be needed, it can be adduced: Schively v. Black, 9 Id. 345.

But we think the court erred in holding that the record of the judgment against Maguire was competent evidence against Giltinan. If the liability is direct and primary, it is clear this is so, and if the writing is viewed as a mere undertaking of suretyship, still it was error; Giltinan was no party to that action, had no notice to defend it, and could not be brought into defence of it by the plaintiff. The plaintiff's remedy against him could be only on his own promise. A surety may give notice to his principal who owes him this duty to defend him, but it would be a novelty if the principal could call in his surety who owes no such duty, to defend him. Giltinan was therefore in no sense either a party or privy to that action. Under the term parties (says Mr. Greenleaf, in his Law of Evidence, § 524), "the law includes all who were directly interested in the subject-matter, and had a right to make defence or to control the proceeding, and to appeal from the judgment. The right involves also the right to adduce testimony and to cross-examine the witnesses adduced on the other side. Persons not having these rights are regarded as strangers to the cause." A surety in a separate and independent instrument is no party who could appear and control the separate action against his principal or appeal from the judgment. Nor is there a legal privity. Privity, says Mr. Greenleaf, § 189, denotes mutual or successive relationship to the same right of property. In none of the classes enumerated, as in estate, in blood, and in law, does the case of a surety fall in reference to a creditor's action. It is the right to represent, which creates privity in law as between ancestor and heir, decedent and administrator, &c., but clearly the principal, in an action against himself alone, cannot represent his surety. If he could, then he could bind his surety for an extinguished or paid debt by a confession or a default. The privity of the surety with his principal is in the contract alone...