Terrill v. Tillison

• Decision Date: 25 February 1903
• Citation: 75 Vt. 193,54 A. 187
• Court: Vermont Supreme Court
• Parties: TERRILL v. TILLISON.

54 A. 187

75 Vt. 193

TERRILL

v. TILLISON.

Supreme Court of Vermont. Chittenden.

Feb. 25, 1903.

Exceptions from Chittenden county court; Start, Judge.

Assumpsit by L. F. Terrill against F. P. Tillison. Judgment for defendant, and plaintiff brings exceptions. Affirmed.

Argued before TYLER, MUNSON, WATSON, STAFFORD, and HASELTON, JJ.

L. F. Wilbur, for plaintiff.

V. A. Bullard and Elihu B. Taft, for defendant.

WATSON, J. The execution of the note upon which the plaintiff seeks to recover was admitted by the defendant, but he claimed in defense that the note was procured by fraud and was without consideration. In support of this claim, and under exception by the plaintiff, the defendant was permitted to show that in the spring of 1897 the plaintiff, T. S. Whipple, and G. A. Terrill signed or indorsed notes for one Geo. E. Terrill, a son of the plaintiff, to the Howard National Bank of Burlington, to the amount of $2,000, which they subsequently, and before the execution of the note in question, were obliged to pay; that, before they would so sign or indorse any paper for Geo. E., they required him to secure or indemnify them for so doing, whereupon Geo. E. delivered to them a bond, purporting to be signed by the defendant and five other obligors, for $6,000, payable to the plaintiff, Whipple, and G. A. Terrill, conditioned that if the notes and papers which they were to indorse for the said Geo. E., not exceeding $6,000, should be paid, then the obligation should be void, otherwise in force, and stating therein that it was understood and agreed that none of the signers of the bond should be held in an amount greater than $100; that the body of the bond did not contain the names of any obligors, but that it had the names of what purported to be six signers at the bottom, and among them was the name of the defendant. The defendant's evidence further tended to show that neither the defendant nor any of the other of said apparent obligors ever signed said bond, but that their names had been cut off a bond running to said bank for $4,000, which they had in fact signed for the benefit of the said Geo. E., and the same had been pasted to the bond first above mentioned; that after the plaintiff, Whipple, and G. A. Terrill had paid the paper which they had so signed to the bank, the plaintiff, seeking to get a settlement of the defendant's supposed liability on the bond for $6,000, wrote the note in question, and gave it to Geo. E., telling him to get the defendant to sign it, but gave him no other instructions, and that when the defendant gave the note he was informed by Geo. E. that it was to discharge his liability on the said bond running to the bank, and he so supposed, when in fact it was to discharge his liability on the said bond for $0,000. This evidence, if true, showed that the only consideration for the note was the defendant's liability on a bond which was never signed by him, nor by any of the obligors whose names were attached thereto, but that their names were cut off another bond which...