Peters v. Sanford

1 Denio 224

Opinion

By the Court, Jewett, J.'

Assuming that the defendants were partners in the,purchase of the plaintiff’s wool, and as such jointly liable for the payment of the price, still this action cannot be sustained. The plaintiffs accepted the individual note of Read as a security of the payment of that debt, he transferred the note by endorsement, and it not being paid at maturity, he as endorser and Read the maker, were sued upon it and judgment was recovered against them. It is well settled, that if a judgment be obtained against one of several joint contractors, in a separate action against him on such contract, the plaintiff cannot afterwards proceed against the parties" omitted, and consequently loses their security. It is not necessary that satisfaction should follow the judgment, to work an extinguishment or merger of the liability of the joint contractors; the judgment performs that office. It cannot vary the principle, that this suit was brought and judgment obtained in the name of the holder, or that the plaintiff was made a defendant with Read. The right of action for the recovery for wool sold and delivered, is as effectually extinguished by the note and judgment upon it, as it would have been if the plaintiff had obtained a judgment on the note in his own name. The plaintiff could not sustain an action against Read, either for wool sold or upon the note. The judgment extinguished his right of action upon both. Having naid the judgment, his remedy is by an action against Read for money paid; but he cannot maintain such an action against Sanford, who was at no time liable to the plaintiff, except in assumpsit for wool sold and delivered; and his right of action against both defendants for that cause is merged in and extinguished by the judgment. The nonsuit was properly granted. (Robertson v. Smith and others, 18 John. Rep. 459; Moss v. McCullough, 5 Hill, 131; Pierce v. Kearney, Id. 85.)

New trial denied.