By the court, Morgan, Justice.
I told the jury in this case, that there was no question of fact for them to decide, but that the payments and indorsements on the note under the circumstances, were sufficient to take the case out of the statute of limitations as to Potter.
[55]*55The counsel for the appellant desired me to submit to the jury the question whether the last payment of interest was by Potter on his own account, or as the agent of Thorne.
This I declined. The case as settled, leaves it in some doubt whether I did not direct a verdict upon the sole ground of the last payment, and not generally upon the facts of the case as to the payments in question.
It must be admitted that the payment of interest which preceded the last payment, was made at the request, of Potter, and that within the principles of the case of Winchell agt. Hicks, (18 N. Y. R., 558,) this circumstance was sufficient to keep the note alive as to him, without regard to the last payment. It does not appear from the statement of the case, what disposition was made with the evidence in regard to this payment of 1857. Some question was stated in regard to the last payment, and that appears in the exceptions. There was no dispute as to the fact that Potter requested Thorne to pay the interest in 1857. If the decision had been put distinctly upon the payment of 1857, there would be no doubt of its correctness.
It is now said that the decision is right on the whole casé, but cannot be sustained on the ground on which it was placed at the circuit. If this position is sound, then it may be said with great propriety, that it is safer to give a decision without reasons, than to undertake to assign them. It would certainly be unsafe to trust the appellant’s counsel to assign them, if a new trial is to be granted in those cases where the decision is right, but the reason stated is not the true one on which it should have been based.
It is the business of the party who takes exceptions, to show that the decision is wrong. It is not enough that he succeeds in mystifying it, by adopting language which subjects the judge to the suspicion that he did not understand the safest ground on which to place it. It is enough that the decision is right upon the undisputed facts of the case, [56]*56whether the reason given is true or false. A new trial in such a case would do no good; but on the contrary would subject the parties to an expensive litigation to correct a theoretical error, which was not at all important to a correct decision of the question involved.
It would be sufficient, however, to induce this court to grant a new trial, if the case showed that the defendant had any way by which he could have avoided the result, if the true ground of the decision had been mentioned by the judge.
But here the evidence was closed, and it would be the merest speculation to suppose, that the circumstance of the payment of interest in 1857, could have been altered at that stage of the trial. It is not even suggested on the argument that there was any way to obviate the effect of that payment.
It will be observed, also, that the judge is made to say in his decision at the circuit, that the payment and indorsement upon the note under the circumstances, was sufficient to take the case out of the statute of limitations.
By a liberal interpretation of the language of the charge, this is referred to the last payment instead of the payment of 1857.
I have my doubts whether this liberality is to be indulged in, for the sake of helping out the appellant’s exceptions. It is to be assumed that the charge of the judge is right, except in the matters complained of. If he spoke of the last payment instead of the payment of 1857, it is to be assumed that he instructed the jury correctly as to the payment of 1857; or will it be assumed that the judge ignored the evidence as to the payment of 1857 ? that he disregarded it ? and that for the purposes of this motion it is out of the case ? I think not. It should appear affirmatively by the exceptions that the appellant has been wrongfully beaten in this suit; and the counsel should", in drawing them up, point out the error, so that this court [57]*57can see that the decision is wrong upon the whole case, not merely upon an isolated question which it was not even necessary to consider in order to come to a correct result.
In my opinion, we are in danger of going too far in granting new trials, for merely technical errors, when it is evident the decision is right, notwithstanding the errors complained of.
It is enough, in my opinion, that the decision is right, however erroneous were the views of the judge who pronounced it. If this decision is right upon the undisputed facts, as to the payment of interest on the note, in 1857, it should stand, although the judge erroneously put it upon the ground of the payment of 1858.
But as it is not stated in the exceptions that the judge put the decision solely upon the payment of 1858, I think it is not to be assumed.
And as nothing is said as to the payment of 1857, in the exceptions, the presumption rather is, that the judge held correctly as to the effect of that payment. The exceptions are not suffered to state what is held correctly, but only such points as the appellant desires to controvert. If he controverts a point not necessary to a correct decision of the cause, he ought to take nothing by his exceptions.
If the court, however, should come to the conclusion that the decision is based solely upon the payment of interest on the note, in 1858, and that if it had been placed upon the payment of 1857, the defendant’s counsel might have overcome the effect of the evidence, then I think we are required to look into the facts as to the payment of 1858, and Potter’s admitted connection with it; and if we could see that the jury could fairly give it such an interpretation as would relieve Potter from liability, that a new trial ought to be granted.
The instruction asked for was, that if Potter was the agent of Thorne’s assignee in making this last payment, he [58]*58did not thereby make himself responsible for its legal effect upon the parties who furnished the funds.
The proposition is, that one joint maker of a note may become the agent of the other in making a payment, without personal liability as to himself. If he does it as agent of the other joint maker, he does not, it is said, do it himself. It is admitted that he has an interest in the payment. If the note is not outlawed, the payment results to the benefit of both parties. At the time this last payment was made, Potter was still liable on the note, and he had, therefore, an agency coupled with an interest. His interest was a stronger legal motive for his action than his responsibility as a mere agent. He participated in the act of payment, where he had an interest sufficiently strong to account for his conduct,,without clothing him with a naked agency; but he now says that he did not participate in the act of payment, except as a mere naked agent of the other joint maker. Certainly he did nothing at the time to repudiate his connection with the matter, or avoid the effect of tho payment in question. He knew that the principal was. about to make a payment on the note which would benefit him and revive it as against both parties, if they both participated in it.
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By the court, Morgan, Justice.
I told the jury in this case, that there was no question of fact for them to decide, but that the payments and indorsements on the note under the circumstances, were sufficient to take the case out of the statute of limitations as to Potter.
[55]*55The counsel for the appellant desired me to submit to the jury the question whether the last payment of interest was by Potter on his own account, or as the agent of Thorne.
This I declined. The case as settled, leaves it in some doubt whether I did not direct a verdict upon the sole ground of the last payment, and not generally upon the facts of the case as to the payments in question.
It must be admitted that the payment of interest which preceded the last payment, was made at the request, of Potter, and that within the principles of the case of Winchell agt. Hicks, (18 N. Y. R., 558,) this circumstance was sufficient to keep the note alive as to him, without regard to the last payment. It does not appear from the statement of the case, what disposition was made with the evidence in regard to this payment of 1857. Some question was stated in regard to the last payment, and that appears in the exceptions. There was no dispute as to the fact that Potter requested Thorne to pay the interest in 1857. If the decision had been put distinctly upon the payment of 1857, there would be no doubt of its correctness.
It is now said that the decision is right on the whole casé, but cannot be sustained on the ground on which it was placed at the circuit. If this position is sound, then it may be said with great propriety, that it is safer to give a decision without reasons, than to undertake to assign them. It would certainly be unsafe to trust the appellant’s counsel to assign them, if a new trial is to be granted in those cases where the decision is right, but the reason stated is not the true one on which it should have been based.
It is the business of the party who takes exceptions, to show that the decision is wrong. It is not enough that he succeeds in mystifying it, by adopting language which subjects the judge to the suspicion that he did not understand the safest ground on which to place it. It is enough that the decision is right upon the undisputed facts of the case, [56]*56whether the reason given is true or false. A new trial in such a case would do no good; but on the contrary would subject the parties to an expensive litigation to correct a theoretical error, which was not at all important to a correct decision of the question involved.
It would be sufficient, however, to induce this court to grant a new trial, if the case showed that the defendant had any way by which he could have avoided the result, if the true ground of the decision had been mentioned by the judge.
But here the evidence was closed, and it would be the merest speculation to suppose, that the circumstance of the payment of interest in 1857, could have been altered at that stage of the trial. It is not even suggested on the argument that there was any way to obviate the effect of that payment.
It will be observed, also, that the judge is made to say in his decision at the circuit, that the payment and indorsement upon the note under the circumstances, was sufficient to take the case out of the statute of limitations.
By a liberal interpretation of the language of the charge, this is referred to the last payment instead of the payment of 1857.
I have my doubts whether this liberality is to be indulged in, for the sake of helping out the appellant’s exceptions. It is to be assumed that the charge of the judge is right, except in the matters complained of. If he spoke of the last payment instead of the payment of 1857, it is to be assumed that he instructed the jury correctly as to the payment of 1857; or will it be assumed that the judge ignored the evidence as to the payment of 1857 ? that he disregarded it ? and that for the purposes of this motion it is out of the case ? I think not. It should appear affirmatively by the exceptions that the appellant has been wrongfully beaten in this suit; and the counsel should", in drawing them up, point out the error, so that this court [57]*57can see that the decision is wrong upon the whole case, not merely upon an isolated question which it was not even necessary to consider in order to come to a correct result.
In my opinion, we are in danger of going too far in granting new trials, for merely technical errors, when it is evident the decision is right, notwithstanding the errors complained of.
It is enough, in my opinion, that the decision is right, however erroneous were the views of the judge who pronounced it. If this decision is right upon the undisputed facts, as to the payment of interest on the note, in 1857, it should stand, although the judge erroneously put it upon the ground of the payment of 1858.
But as it is not stated in the exceptions that the judge put the decision solely upon the payment of 1858, I think it is not to be assumed.
And as nothing is said as to the payment of 1857, in the exceptions, the presumption rather is, that the judge held correctly as to the effect of that payment. The exceptions are not suffered to state what is held correctly, but only such points as the appellant desires to controvert. If he controverts a point not necessary to a correct decision of the cause, he ought to take nothing by his exceptions.
If the court, however, should come to the conclusion that the decision is based solely upon the payment of interest on the note, in 1858, and that if it had been placed upon the payment of 1857, the defendant’s counsel might have overcome the effect of the evidence, then I think we are required to look into the facts as to the payment of 1858, and Potter’s admitted connection with it; and if we could see that the jury could fairly give it such an interpretation as would relieve Potter from liability, that a new trial ought to be granted.
The instruction asked for was, that if Potter was the agent of Thorne’s assignee in making this last payment, he [58]*58did not thereby make himself responsible for its legal effect upon the parties who furnished the funds.
The proposition is, that one joint maker of a note may become the agent of the other in making a payment, without personal liability as to himself. If he does it as agent of the other joint maker, he does not, it is said, do it himself. It is admitted that he has an interest in the payment. If the note is not outlawed, the payment results to the benefit of both parties. At the time this last payment was made, Potter was still liable on the note, and he had, therefore, an agency coupled with an interest. His interest was a stronger legal motive for his action than his responsibility as a mere agent. He participated in the act of payment, where he had an interest sufficiently strong to account for his conduct,,without clothing him with a naked agency; but he now says that he did not participate in the act of payment, except as a mere naked agent of the other joint maker. Certainly he did nothing at the time to repudiate his connection with the matter, or avoid the effect of tho payment in question. He knew that the principal was. about to make a payment on the note which would benefit him and revive it as against both parties, if they both participated in it. Potter now says, “ I did not participate in it, because I had no interest in it, but as a mere agent or messenger of the other party. If the note does not outlaw as to me before suit, I get the benefit of it; if it does, I repudiate the payment, and claim the benefit of the statute of limitations.”
To my mind, there is something inconsistent in the two characters. Men are supposed to consult their interests, and when it is for the pecuniary interest of a man that the payment should be made by the principal debtor, and he consents to take the money and see to its application, the law will not allow him to assume that he did the act gratuitously, and not in obedience to his pecuniary interest. He cannot, in my opinion, afterwards call it a mere gratui[59]*59tons act, without expectation of benefit to himself, because it happens in the course of time that it will turn out to his advantage to give it that construction.
The law implies a new promise to pay a debt, barred by the statute of limitations, from a bare acknowledgment of a subsisting obligation. That acknowledgment is sufficiently evidenced by the payment and endorsement of interest on the obligation. If the surety requests the principal to make a paj'ment of the interest on the obligation, and it is accordingly made and endorsed, the act is regarded as the acknowledgment of both parties. (18 N. Y. R., 558.) Formerly the law imputed the act of payment by one joint obligor as the act of both parties, on the ground of a supposed agency between them. It is now held that no such agency exists ; (see cases cited by Judge Allen in Winchell agt. Hicks, above;) and it simply follows, that one joint maker cannot bind the other by such an acknowledgment without his consent. But it has not been held that the other joint maker is not bound, when he knows of, and assents to, the payment. If he requests it, he is bound, as was decided in the case above cited ; and I think it follows that he is equally bound, if he knows of it at the time, and does any act whatever to facilitate it.
In this case, the act was done for the benefit of Potter, as well as the principal; for the note was not then barred by the statute. Potter knew of it, took the money to the holder of the note, and had it properly indorsed as so much paid by the principal, whose duty it was to make the payment. Grant that he was an agent; that does not relieve him from the knowledge and approval of an act done by the principal for his benefit.
He was an agent, and more too. He had an interest, and was competent, although acting as an agent, to approve and ratify the act in question, as having been done for his benefit as well as that of the principal.
In my opinion, therefore, he was bound by the acknow[60]*60ledgment which the act indicated, and which he participated in and approved of at the time it was done. As the act was done for his benefit, it will be assumed that he approved of it.
For these reasons, I think a new trial should be denied, even if the court come to the conclusion that the decision must rest upon the effect of the evidence of the payment of 1858.
Justices Bacon, Allen and Mullin concurred in the result, on the ground first discussed in this opinion.
Judgment affirmed, and new trial denied.