Fairchild and others against Holly and others

Fairchild and others against Holly and others. A judgment on a new security given for a previous indebtedness, is not, of itself, a satisfaction of such indebtedness. Therefore, where several persons were jointly indebted on book to A; B, one of the joint debtors, gave his own separate promissory note to A for the balance of the account, which was entered upon As book to the credit of the original debtors, but was not accepted by A, in satisfaction of his claim against them, and A recovered judgment on the note against B, who became insolvent, and the judgment was wholly unsatisfied; in an action of debt on book, afterwards brought by A against all the original debtors, it was held, that the judgment on B's note vras no bar or defence to the action. This was an action of debt on book ; tried at Danbury, September term, 1834, before Daggett, Ch. J. On the trial it appeared, that the plaintiffs were manufacturers of paper ; and that Holly, one of the defendants, was the editor and printer of a newspaper. The charges on the plaintiffs’ book were all for paper delivered by them to Holly, at the office at which the newspaper was printed, for the use of the printing establishment, and were admitted, by the defendants, to be correct. Holly and William S. Wood, another of the defendants, were defaulted ; and the other defendants denied, that they were in any way liable to the plaintiffs ; insisting, that they were not the partners of Holly nor jointly concerned with him in the printing establishment. The plaintiffs claimed, that the defendants were all jointly interested in it, and that Holly was their agent in procuring the paper for which the action was brought. The paper was furnished on a credit; and on the 25th of February, 1832, the plaintiffs reckoned with Holly, and found the balance then due them for paper so furnished, to be 180 dollars ; for which they took a note, signed by Holly, in his own name only, payable on demand, and credited it in their account with William H. Holly <£• Co. On this note the plaintiffs brought a suit against Holly only, and recovered judgment for its whole amount. This judgment is still in force and unsatisfied. The defendants insisted, that the note was taken, by the plaintiffs, in payment of so much of their account. This the plaintiffs denied. There was no evidence, that when the plaintiffs took the note, it was agreed between them and the defendants, that it should be received in satisfaction or payment of any portion of the plaintiffs’ account. Holly became insolvent before the commencement of this suit, and so continues. The defendants insisted, that as the note had been sued, and a judgment recovered thereon against Holly, which was still in force and unsatisfied, such judgment operated as a merger of the note, and as a payment of so much of the plaintiffs’ account. This the plaintiffs denied ; and claimed, that the judgment could have no greater effect than the note on which the judgment was recovered could of itself have; and that the mere giving of the note by Holly and the judgment recovered thereon, did not operate in payment of so much of the plaintiffs’ account. The court charged the jury according to the claim of the plaintiffs ; and they found a verdict in conformity thereto- The defendants moved for a new trial for a misdirection. Sherman and Betts, in support of the motion, contended, That the judgment on the note was a bar to the original cause of action. Had there been a judgment on the plaintiffs’ account for the balance due, it is clear that this would be a bar. Now, this is substantially such a judgment. The note was given for the balance due; and was a security of no higher nature than the book debt, both being simple contracts, and capable of being joined in the same declaration. The note superadded no obligation on the part of Holly to pay. Is it not true, then, that so much of the plaintiffs’ account as is embraced by the note, has gone into judgment? Is not the indebtedness by note the same indebtedness as that which is the present cause of action ? Will not the question whether the adjustment on which the note was given, was correct, be opened for re-examination here ? Litchfield, June, 1835. The case of Sheehy v. Mandeville & al. 6 Crunch 253. will be cited for the plaintiffs. Ch. J. Marshall, who delivered the opinion of the court in that case, seems to consider that the defendants being partners, judgment might be in fa-vour of one, but not of the other; thus treating the contract as joint and several, whereas it was strictly joint, though it may be several as to the remedy. 1 Chitt. Plead. 30. This case was considered in Robertson v. Smith & al. 18 Johns. Rep. 459. 482. & seq. and the doctrine of Ch. J. Marshall pointedly disapproved of, and the contra^ doctrine established. The opinion given by Ch. J. Spencer, in that case, is luminous, and his reasoning conclusive. Drake v. Mitchell & al. 3 East 251. may also be cited for the plaintiffs. But there the original indebtedness was by covenant ; and the subject of the suit in which the judgment was recovered, was a bill of exchange — a simple contract. This being the case, the court held, that nothing had happened to alter the situation of the parties in respect of the plaintiffs’ original remedy on the covenant: a judgment on the simple contract did not bar a subsequent action on the covenant. Hawley, contra, after remarking that Holly, who gave the note, and against whom the judgment was recovered, having been defaulted, thereby acknowledged his liability to the plaintiffs’ demand, contended, 1. That the note itself did not amount to payment, nor merge the account; an express agreement being necessary to produce that effect. Schemerhorn &al. v. Loines 6c al. 7 Johns. Rep. 311. Sheehy v. Man-deville & al. 6 Crunch 253. 264. Bill v. Porter & al. 9 Conn. Rep. 23. 30, 1. [This point was conceded.] 2. That the judgment on the note cannot vary the case. The note is the collateral promise of one only of several persons liable, made long after the original indebtedness accrued. If the judgment can have such effect, it can be only by merger, and furnishing a new remedy. But a judgment can merge only the very cause of action on which it is recovered. It furnishes a new remedy on that particular cause of action alone. How can it merge that which the cause of action itself did not merge ? The judgment is not-equivalent to payment; e. g. a recovery against one indorser, does not discharge any other party, without satisfaction. The judgment, then, not amounting to payment, and there being no agreement to give it that effect, can it extinguish the original indebtedness, on the ground of its furnishing a new remedy ? It gives a new remedy on the note only — not on the original indebtedness; a remedy against Holly only, not against the whole. The note is merely a new, distinct, collateral promise, by one of several debtors, to pay the original debt. This promise cannot discharge that debt until it is fulfilled. The judgment upon it is not a fulfilment: it is only a new mode of enforcing the fulfilment. There has been no judgment recovered on any liability in which any of the present defendants, except Holly, participated. Holly was sued on his sole liability — not on the original cause of action ; and is not now sued on a cause of action on which he has ever been sued before. In the former action, the other defendants could not have been sued with him. How can they be discharged, by a judgment in a suit to which they were not, and could not possibly have been, parties 1 The case of Sheehy v. Mandeville, 6 Crunch 253. fully supports this doctrine ; and the authority of that case was recognized, by Ch. J. Hosmer, in Sheldon v. Kibbe, 3 Conn. Rep. 218. Drake v. Mitchell <fc al. 3 East 251. 259. is also a strong case in confirmation of the same doctrine. It was there decided, that the judgment recovered on the new security, was in itself no satisfaction until payment should be obtained on it. [MAJORITY — Church, J.] Church, J. The defendants were indebted to the plaintiffs on book, in an amount unadjusted. On the 25th February, 1832, Holly, one of the defendants, reckoned with the plaintiffs, and found due to them one hundred and eighty dollars, for which he gave his own separate note, signed only with his own name, and which the plaintiffs received and entered upon their book to the credit of Holly Sf Co. This note was never paid; but it was sued and judgment recovered upon it against Holly; and this judgment still remains unsatisfied, and Holly has become insolvent. Jt is unnecessary to consider the question which has been so the subject of judicial discussion, whether this note ought to be applied in payment of an equal amount of the plaintiffs’ demand against Holly fy Co. ; because the question of fact, whether the note was received in satisfaction, was distinctly submitted to the jury, and decided in the negative. But it is claimed, that although theno¿e cannot operate as a satisfaction of so much of the plaintiffs’ claim; yet that the judgment upon that note, though unsatisfied, will so operate. We think otherwise. The note itself not having been received in satisfaction, a judgment upon it could not affect its operation in this respect. The judgment merges only the cause of action upon which it was rendered, — and that was the note against Holly alone, — and not the original book debt against Holly Sf Co. All the present defendants, except Holly, were strangers to the note and to the judgment upon it; andas the judgment could not operate against them, neither will it in their favour. Yet if the judgment had been paid, the defendants would have been entitled to the benefit of the payment, in the same manner and in no other, than if Holly had paid the debt without either note or judgment. In such cases, it is the satisfaction of the original debt only, which discharges it. Drake v. Mitchell, 3 East 251. The ground upon which the defendants place themselves, is, that as the original cause of action furnished the consideration of the note, the judgment, therefore, upon the note, was a judgment upon that original cause of action, and merged it. This position is fallacious. The conclusion does not follow the premises; for although the book debt against Holly &. Co. might and did enter into the consideration of the note made by Holly, yet the consideration of a contract is not the contract itself; and it is the contract only which constitutes the cause of action. The causes of action were entirely distinct; and the same evidence would not support, nor even conduce to support them both. The cause of action upon the note was several, against Holly alone ; but upon the book account was joint, against Holly & Co. The note was an express contract, and collateral to the original cause of action; the book account was, or might have been, an implied contract only ; and it was the original demand against the original debtors. 1 Stark. Ev. 198. Johnson v. Smith, 8 Johns. Rep. 383. Rice v. King, 7 Johns. Rep. 20. The present, therefore, is not a case in which the plaintiffs have recovered a judgment against one joint debtor, and are now seeking to recover another, for the same matter, cause and thing, against all the joint debtors. If it was, we might be called upon to consider the comparative merits of the conflicting opinions on this subject of the supreme court of the United States, in the case of Sheehy v. Mandeville & al. 6 Cranch 253. and of the supreme court of the state of New- York, in Robertson v. Smith & al. 18 Johns. Rep. 459. The case of Drake v. Mitchell, 3 East, 251. recognizes the principles here advanced, and seems to us entirely conclusive in this case. That was an action of covenant against three joint covenantors, upon an indenture of demise .The defendants, as to part of the sum demanded, pleaded, that Mitchell, one of the defendants, had theretofore made his promissory note for 1117 2s. 3d. part of said sum demanded, and had delivered the same to the plaintiff; that the plaintiff had afterwards sued the defendant Mitchell on that note, and had recovered judgment against him upon the same, which judgment then remained in force and unsatisfied. To this part of the plea the plaintiff demurred, because it was not avowed in the plea, that the note was received in satisfaction ; and for this cause the court held the plea to be insufficient. And Lord Ellenborough says : “ I have always understood the principle of transit in remjudi-catam to relate only to the particular cause of action in which the judgment is recovered, operating as a change of remedy from its being of a higher nature than before.” And Le Blanc, J. says : “ The giving of another security, which in itself would not operate as an extinguishment of the original one, cannot operate as such, by being pursued to judgment, unless it produce the fruits of a judgment.” We do not devise a new trial. In this opinion all the Judges concurred. New trial not to be granted.