Bay v. Tallmadge

5 Johns. Ch. 305

• Court: New York Court of Chancery
• Decided: July 9, 1821
• Status: Published

Opinion

The Chancellor.

Bay and Bachman, whom the present plaintiffs represent, were bail to the arrest in a suit at law, commenced by the present defendant against Henry Plainer. Special bail not being put in, the bail bond was assigned, and the bail to the arrest were sued and prosecuted regularly to judgment and execution. A fi. fa. for the amount of the debt, interest, and costs due from P., the original defendant, was issued and levied upon their property. An agreement, in writing, was then entered into, bearing date the 28th of April, 1797, between the present defendant, by his attorney to the suit, and the agent or attorney of B. and B. the bail, by which judgment was to be entered by consent against P., the original defendant, and proceedings Stayed against B. and B. in the bail bond suit, until the effect of measures taken to recover of P. so much of the debt, interest, and costs as might be recoverable by execution, within the county of Columbia, should be ascertained.

Under that agreement, a fi.fa. was, on the 5th of June,, 1797, issued and levied upon personal property, and a farm belonging to P. The property was advertised for sale by the sheriff, in July, 1797, and on the day appointed for. the sale it was postponed to the 14th of October, 1797, against the consent of the agent of the present defendant, but with the consent of the agent of Bay, one of the bail to the arrest. On the 14th of October, the present defendant did not attend, but S. Sutherland, who was interested in the judgment, attended at the place of sale on his behalf, and as his agent, agreed to a further postponement of the sale, to the 14th of April, 1798. The defendant says, in his answer, that S. S. was not authorized to attend as his agent, or agree to any postponement of the sale, but he,' the defendant, afterwards, acquiesced in the postponement, for the reasons that induced S. S. to assent to it, and which were the intreaties of P. and his wife, and the assurances of P. that he could, in the interval, procure money to pay the debt.

The whole of the present controversy arises upon this postponement of the sale.

The counsel for the plaintiffs contend, that by giving further time to Plainer on the execution, without the assent of B. and B., they were discharged ; and especially as such postponement was against their express prohibition, and to their, injury. On the other side, it is contended, that B, and B. having their property charged in execution, had become principal debtors, and had lost, as respected the present defendant, the character and privileges of bail, and that the defendant did not discharge them by the postponement of the sale; and that B. and B. afterwards repeatedly waived any such pretence, and recognized their existing responsibility.

The fact of the postponement is admitted, but the objection to it, on the part of the bail, is denied.

One of the witnesses for the plaintiffs (J. R. Van Rensselaer) says, that Bachman, one of the bail, and the agent of the other, were present, and that such agent objected to the postponement, and informed either S. S., or the attorney of the defendant, that his principal, Buy, would not hold himself further bound for payment of the judgment, if the sale was postponed. Another witness for the plaintiffs (David Ingersol) deposes much to the same effect, and that the agent of Bay objected to the postponement of Ihe sale, and observed, that if they did not proceed, the two bail would consider themselves discharged, and that either S. S. or the attorney of the defendant, replied, that there was property enough, and that they would not look to the bail.

It is to be observed, that S. Sutherland is dead, but the answer denies any knowledge or belief of any such objection made on the part of the bail, to a postponement of the sale, and the attorney of the defendant (A. Spencer, now Ch. J.) who was present at the postponement, and was the person most likely to be consulted, as to every measure reSpect'lng the execution, and very likely to take accurate notice of every transaction, never heard any such objection, or understood that any such objection was made. He says, the sale was postponed at the earnest request of Platner and his wife, to enable him to raise the money. It is also improbable, that S. Sutherland should have undertaken, without any consultation with the attorney of the defendant, to reply in the manner he is said to have done, that the defendant would not look to B. and B. Ingersol, also, says', that the sheriff declared, that if the sale was postponed, it must be at the risk of the defendant, and that either S. S. or the attorney of the defendant replied, that they would take the responsibility on themselves. The attorney says, he never heard of any such observation from the sheriff, and never understood that either the sheriff or any of his deputies were opposed to the adjournment. Such a reply from either the attorney or S. S. would be very improbable.

The communications on the part of B. and B., and on the part of the sheriff, would naturally have been made to the attorney to the execution, rather than to S. S., a stranger, who came there from necessity, because the defendant himself was absent on a journey, and who had no instructions from the defendant. I think it, therefore, very possible, there may have been some loose conversation, misunderstood by the witnesses, and that any serious and direct objection to the postponement would have been addressed to the attorney himself. The two witnesses who mention the fact of the objection, do not either of them recollect, with any certainty, so material a point as the identity of the person to whom the objection was made. They do not know whether it was made to Sutherland, the assumed agent, or to the attorney for the defendant. This fact considerably impairs the force and precision of their testimony ; and though I have no doubt they both speak to the best of their memory, yet considering the circumstances attending the case, and the very remote period of time to which their testimony refers, I cannot say that 1 think the fact of a direct or explicit dissent from the postponement of the sale, is made out to my entire satisfaction.

After jurlarment against bail, their character of bail is at an enrl; and the)* can no longer claim the privileges of sureties*

2. But assuming the fact of a dissent from the postponement, as charged on the part of the plaintiffs, the postponement did not discharge B. and B. from their obligation to pay the judgment against them. Their privileges as bail were lost, and they had become fixed as principal debtors ; and what they were entitled to require of the defendant, rested upon their contract with him of the 25th of April, 1797, not upon their character as bail. They were entitled to require the fulfilment of it, upon the footing of a contract with good faith; and that necessarily implied reasonable diligence in the efforts to collect the money of Plainer, it required nothing more; and I am not aware of any case that has ever imposed upon the creditor the necessity of peculiar diligence against the principal, on the ground of the still subsisting relation of principal and surety, after judgment and execution against the bail or the surety. It becomes, then, too late to inquire into the antecedent relations between the parties. Those relations became merged in the judgment. This was expressly declared to be the case as between the holder and maker, and endorser of a promissory note, by the Supreme Court of the United States, in Lenox v. Prout ; (3 Wheat. 520;) and I cannot perceive that the plaintiffs B. and B. have any greater privileges after judgment against them, in consequence of their original character as bail, than the party had in the case cited, who was originally an endorser without consideration. In that case, there was judgment against P. as endorser, and another judgment against D. as maker of a promissory note ; and P. called on the creditor, and requested him to issue execution against the maker. He did so; but recalled the execution before any thing was done, though P. had offered to point out to the. sheriff, property of JD., and to indemnify him for taking and selling it. It was shown to be probable, that if the fi. fa. had been prosecuted to effect, a great part of the judgment might have been recovered of D,, the maker. The Circuit Court had, upon these circumstances, perpetually injoined the holder from proceeding at law on the judgment against P., but that decree was reversed by the unanimous opinion of the Supreme Court, on the ground, that by the judgment, the endorser, as well as the maker had become a principal debtor, and he ought to have paid the money at once, and taken under his own direction the judgment against the maker, by having it assigned to him.

The meaning of the agreement of the 28th of April, 1797, was, that the defendant was to take measures to recover the debt of P. under the evidence of a reasonable discretion. He was not bound to press an immediate sale of his property with unusual severity. He did proceed with due diligence ; and the first adjournment of three months was against his consent, and at the instance of B. and B. The second adjournment was called for by the intreaties of the debtor, and under assurances and expectations that the money could be procured in the intermediate time. If the plaintiffs B. and B. were dissatisfied with the second adjournment, they should have come forward and offered payment, and called for an assignment of the judgment, for their indemnity. This they would have been entitled to demand, and if it had then been refused, the refusal might have laid the foundation of a claim for the assistance of a Court of Equity. But when it appears that the creditor acted in good faith and from humane motives towards the debtor, and with a view to, facilitate the payment of the debt, it would not be consonant to the principles of this Court, to lend the exertion of its powers to punish a party with the loss of his debt, for a reasonable forbearance to the debtor. It would be giving too severe and rigorous a construction to the agreement of April, 1797.

I have not considered as of any importance, in this case, the circumstance charged in the bill, that the postponement was in consideration, and. as part of an agreement on the part of Plainer, to deliver up his deed from the defendant, and to accept of a new one with less extensive covenants The allegation did not appear to be sufficiently supported, and the counsel who argued the cause, on the part of the plaintiffs, did not rely upon it, as I apprehended, for he put the cause, by his points, not upon the ground of any new agreement with P., but simply on the ground that the defendant had “ given time” on the execution, without the assent, and even against the prohibition of B. and B.

The bill charged that the agreement alluded to was reduced to writing, and signed by S. S. as agent of the defendant and by Plainer ; and in another part of the bill the new deed is set forth verbatim; it contains a recital of the agreement, but the postponement of the sale forms no part of it, and the charge, therefore, is refuted in the bill itself..

The answer expressly denies that the postponement was in consideration of that agreement, and avers it to have been made by reason of the entreaties of P. and his wife, and under assurances that he could, in the mean time, raise the. money to pay off the debt.

So stands the fact upon the pleadings, and the parol proof is equally contradictory.

J. R. V. R. says that the postponement was in consideration, and as part and parcel of lire agreement to surrender the original deed, and to receive a new one; and he says that the agreement was made between A. S. and S. S. (the attorney, and the agent of defendant,) and himself, as the agent of Plainer. But the attorney for the defendant (A. S.) says that the postponement was for the very reasons stated in the answer, and he neither knows nor believes that getting up the original deed was the consideration of the postponement, and that he neither assented to, nor dissented from, the adjournment.

It is very certain, then, that that charge in the bill is not sufficiently supported, and must be abandoned.

3. The subsequent acts of B. and B. were a complete waiver of any claim in equity founded on the postponement of the sale, and a full and absolute recognition of their responsibility.

The sale was in April, 1798, and it is proved, that on the 4th July, 1798, both the plaintiffs, B. and B. applied to the attorney of the defendant, to have an execution issued against the property of P. in New-York and Onondaga. They declared that they desired it, for the purpose of exonerating themselves, as far as possible; and the attorney, at their instance, issued executions accordingly, though it was an act entirely gratuitous, and not within the agreement. So, again, at the instance and request of the same persons, on the 5th of October, 1798, he issued another fi. fa. to the sheriff of Columbia, for the purpose of levying on two negroes and some timber, on the allegation made by them, that the same was the property of P. . The personal property was sold, and some of it purchased by one of the plaintiffs, Bay. All these recognitions were before the filing of the bill; and the attorney to the defendant says, that B. and B. did not; on those occasions, or any other, pretend,.that they were not liable for the unsatisfied balance due on the debt of P. The attorney for the defendant states further, that since the sale of the negroes and timber, he has been frequently applied to by B. and B. to delay the collection of the balance of the debt, without making any suggestion, that they were not liable; and he states further, that on the Sth of January, 1800, he received a bond from the plaintiff Bay, and others, for the balance re-mining unpaid and due to the defendant; that the bond was taken as a full settlement of the judgment against B. and B., and it was afterwards paid.

After such repeated acts of acknowlegement of responsibility, the original plaintiffs B. and B. either never intended to hold themselves discharged from the payment of the judgment against them in consequence of the postponement of the sale, or they afterwards retracted that determination. If any right accrued to them, in equity, by reason of the postponement, to be relieved, they have voluntarily waived that right by their subsequent admissions of their obligation to pay. They have required the defendant to issue executions into other counties for their benefit, and it has been done. They have called for another execution into the county of Columbia, and it has been issued, and property sold under it; and, finally, they have paid the judgment, and discharged it. They have no more equity to have that payment refunded, than a person who had voluntarily paid a debt barred by the statute of limitations. The equity of the suit has failed, and the several bills that have been filed in the cause must all be dismissed. But considering the great length of time in which the parties have mutually slept upon their claims, (for it is twenty-two years since the first answer of the defendant was put in,) and considering the representative character in which the plaintiffs have assumed the prosecution of the cause, and the contradiction and uncertainty, attending some of the material matters of fact in litigation, I shall dismiss the bill without costs.

Decree accordingly.