Hulbert v. Ferguson

40 How. Pr. 474

• Court: New York Supreme Court
• Decided: May 15, 1870
• Status: Published

Opinion

Dwight, J.

The rule is well settled, and not questioned here, that, at law, the representatives of a deceased joint debtor are .not liable upon the joint obligation. The complaint in this action is, therefore, in the nature of a bill in equity, and the question raised by this demurrer is whether the allegations of the complaint make a case in which the defendants as the representatives of a deceased joint maker of a promissory note are chargeable upon principles of equity.

I think it clear that it does not.

The doctrine of all the authorities to which my attention has been called, and to which I have been able to refer, is that equity will interpose in such a case only upon proof or presumption that the note was made joint by mistake, when it should have been several, and that such a presumption will arise only where the deceased, whose representatives are sought to be charged, was beneficially interested in the incurring of the obligation; never where he is a mere surety. (Story’s Eq. Juris., §§ 162, 163, 164; Yorks agt. Peck, 14 Barb., 644; Bradley agt. Burwell, 3 Denio, 61; Carpenter agt. Provost, 2 Sandf., 537).

It is upon this principle only, viz.: of the several interest 'in the credit given, that the representatives of a deceased partner have (in case of the insolvency of the survivors), been held chargeable in equity with the joint debt. (Story’s Eq. Juris., § 676, and cases cited).

The fatal defects of the complaint under consideration are, Is#. That there is no allegation of mistake, and 2d, That it appears that the deceased Samuel Bonner was a mere surety, and not beneficially interested in the credit given upon the joint obligation.

The allegations of the complaint show him to have been a mere accommodation indorser upon the original note and the one given for its renewal, and that the note in suit was given in substitution for the last mentioned note before it became due, and for the same consideration. It is true that the complaint alleges that this substitution was accepted by the plaintifi at the urgent request of the deceased Bonner, and upon his statement that it would be an especial favor to him, but these statements do not change Ms relation to the original indebtedness, nor make him anything more than a mere surety upon the note finally made. At the time of the substitution, the indorsed note was not yet due; the liability of the indorser had not been fixed; and there is no allegation that at that time the maker was insolvent; the presumption then was that he would pay the note, and that the indorser would never become liable upon it.

The deceased, therefore, not being beneficially interested in the credit given, being in fact a mere surety, no presumption of mistake will be indulged against him, and there is certainly no allegation of an express contract by which the note was to have been several. On the contrary, the contract expressly alleged is that the plaintiff should rake the joint note of the maker, and indorsers of the previous notes.

I think, the demurrer must be sustained.