Brown v. Haven

1. One question made in this case is, whether the claim in favor of Cain upon the property purchased by the plaintiffs of Reynolds, and which the plaintiffs were afterwards compelled to pay, comes within the scope of the defendant Haven’s guaranty. This iuvqlyes a question of construction of the guaranty, as hearing *444upon the question whether the claim which the plaintiffs were compelled to pay, and for which they claim to recover, is the one referred to in the defendant’s guaranty. When the plaintiffs purchased of Reynolds the canal boat Trojan, together with the sails, rigging, &c., and other appendages, with and on the boat, and took the bill of sale thereof from Reynolds, Reynolds, as part of the same transaction, executed to the plaintiffs, on the same piece of paper with the bill of sale, the following stipulation : “ I further agree that there is no incumbrance on said boat except what is held by P. E. Haven, and about $25. to Wm. Cain on her sails,’ and I agree to pay said Cain and clear said sails from said Cain’s incumbrance as soon as practicable.” At the same time, and as one of the inducements to the plaintiffs to make the purchase, Reynolds procured the defendant to execute on the back of said instrument the following guaranty: uf guarantee that said Reynolds shall clear said canal boat from said William Gain’s claim on said sails, as he has within agreed.”

It is conceded in the agreed statement of facts upon which the case was tried, that in 1861, when Cain replevied the boat and its appendages, including her sails, to enforce his claim, it amounted to $78. which must have included some interest; so that, as is assumed in argument, it must have been about $70. at the date of the defendant’s guaranty. This claim existed under a bill of sale given by Reynolds to Cain, to secure the price of the sails, prior to the plaintiffs’ purchase. That bill of sale or mortgage embraced the boat as well as the sails. It is insisted by the defendant’s counsel that this claim which the plaintiffs were compelled to pay to Cain, being $70. instead of $25!, and being upon the boat as well as upon her sails, instead of being on her sails only, is not the claim referred to in the defendant’s- guaranty, and not embraced in it. In determining this question, so far as it depends on the construction of the defendant’s guaranty, it is necessary to refer to the agreement of Reynolds, since the defendant in his guaranty on the back of Reynolds’ agreement, refers expressly to what Reynolds “has within agreed.” It is obvious, however that the defendant’s engagement was not intended, and cannot be construed, to be co-extensive with that of Reynolds. That stipulation in Reynolds’ agreement by which he agrees that there is no incumbrance upon the property except the two claims mentioned *445in his contract-, is clearly not within the defendant’s guaranty. But Reynolds agrees further — he says .in his contract, uand I agree to pay said Gain and dear said sails from said incumbrance as soon as practicable.” The defendant at the same time on the back of the same instrument says, “ I guarantee that said Reynolds shall clear said canal boat from said William Cain’s claim on said sails as he has within agreed.” What had Reynolds agreed in relation to clearing said canal boat from Cain’s claim on said sails ? Whatever Reynolds had agreed in relation to it, the defendant guaranteed, and no more. The agreement of Reynolds to pay and clear off Cain’s incumbrance as soon as practicable, is an agreement not merely to pay a twenty-five dollar claim, but to pay that claim, whatever it might be, notwithstanding in a previous part of his contract he has stipulated that there is no incumbrance except to Haven and about $25. to Wm. Cain. In construing the stipulation to pay and clear off the incumbrance to Cain, the previous words, “about $25.” are to be regarded as words of description merely to identify the claim, and not words of limitation of the amount Reynolds is to pay on it. His agreement is to pay and clear off that claim. The fact that it turns out to be $70. instead of $25. does not destroy its identity; nor does the fact that it turns out to be secured not only upon the sails but upon the boat also. It is no less a claim upon the sails because it is upon the boat also. It is an incumbrance due to Cain, and there can be no doubt of its being the same debt Reynolds agreed to pay and clear off, although the description of it is in one particular inaccurate, and in another incomplete. Reynolds, therefore, was guilty of a breach of his stipulation to pay and clear off this claim in a reasonable time. The defendant having guaranteed this stipulation of Reynolds, is liable for the breach of it. The question is, whether the claim the plaintiffs were compelled to pay is the same claim in fact that is referred to in the defendant’s guaranty. It is a question of identity. In the absence of fraud on the part of the plaintiffs, the fact that Cain’s claim was $70. instead of $25. cannot absolve the defendant from his guaranty, nor limit his liability to $25. There was no fraud on the part of the plaintiffs, as it is stated in the case that all parties supposed at the time of the contract that Cain’s claim was but $25. The statement in the case *446that the defendant would not have signed the guaranty had he known that Cain’s claim exceeded $25. cannot vary the case ; especially as it is also stated that the plaintiffs would not have made the purchase but for the defendant’s guaranty, they relying on it as security.

2. It is insisted that as the plaintiffs rely on the judgment in the action of replevin to establish the existence and amount of Cain’s lien, and as it appears that Cain’s bill of sale, not having been recorded, was inoperative by the laws of New York as against bona fide purchasers, there could have been no recovery in favor of Cain without showing that the plaintiffs had notice, when they purchased, of Cain’s lien and its amount. It is argued from this that the judgment in favor of Cain against Washburn, one of the plaintiffs, is conclusive evidence that the plaintiffs purchased with notice, not only of the existence, but of the amount of Cain’s lien, and that they were guilty of a fraud in omitting to inform the defendant of the true amount of Cain’s incumbrance. But notice to the plaintiffs when they purchased, that Cain had a lien on the sails, although they were informed by Reynolds that its amount was only $25., was sufficient to warrant a recovery by Cain for the full amount of his claim. The notice was sufficient to put the plaintiffs and the defendant on inquiry. But if this is not so, and the judgment in favor of Cain is erroneous in this respect, it is binding on the defendant, as he and Reynolds had notice of the suit, and the defendant advised to defend it, and, as counsel, conducted the defence. Even if it was necessary in order to warrant a recovery by Cain to the full amount of his claim, to show that the plaintiffs purchased with notice of its true amount, we cannot treat the judgment as conclusive evidence that the plaintiffs purchased with such notice, when it is expressly admitted in the agreed statement of facts, that when the plaintiffs purchased, all parties supposed Cain’s claim was only $25. This express admission is a waiver of such estoppel, even if it might otherwise have availed the defendant, which is by no means conceded, and which is not necessary to decide.

3. It is also insisted that the judgment in favor of Cain is not conclusive against the defendant. But as the defendant and Reynolds had seasonable notice of the suit, and an opportunity to defend it, and as the defendant conducted the defence, he is bound by the *447result; and as the defendant advised the plaintiffs that it was their duty to defend the suit, he is liable for the costs and expenses of the suit, as the amount of Cain’s lien on the sails did not exceed the value of the sales. The plaintiffs could not, at the commencement of the suit, have lessened their damages by giving up the sails, even if Cain’s lien had been only upon the sails.

4. It is insisted by the defendant’s counsel, that as the lien of Cain turned out to be upon the boat as well as upon the sails, the plaintiff can recover only such proportion of Cain’s claim as the value of the sails bears to the aggregate value of the boat and sails ; and that as the boat was worth $400. and the sails $100. the plaintiff can recover only one-fifth of the amount of Cain’s claim. But in order to entitle the defendant to an apportionment, it must appear that as between the defendant and the plaintiffs, there was a common duty resting on them to discharge the lien. Reynolds agreed “to pay said Gain and clear said sails from said Cain’s incumbrance.” No other mode of clearing the sails from the incumbrance, than by payment of the debt, would be a performance, unless it were equally beneficial to the plaintiffs. The defendant in this respect stands in the condition of Reynolds, because his undertaking is, that “ Reynolds shall clear said canal boat from said "William Cain’s claim on said sails as he has within agreedthat is, by paying the debt. As the defendant could not have satisfied his contract except by paying or extinguishing the whole debt, it is clear that as between the plaintiffs and the defendant, there was no common duty, and that there is no ground for an apportionment.

5. As to the alleged variance in the description of the defendant’s guaranty, it cannot prevail. If there is such variance it might have been cured by an amendment of the declaration ; and it is stated in the agreed statement of facts, that “ the court is to render such judgment as is warranted by law upon the plaintiffs’ declaration as the same now stands, or as it might be amended.”

-There is no such misjoinder of parties as claimed by the defendant’s counsel. The action is brought by the parties with whom the defendant and Reynolds contracted. The fact that one of the plaintiffs subsequently sold out his interest in the boat, and its appendages, including his interest in the contract of purchase, to one of the *448other plaintiffs, and that the other plaintiffs made the whole payment to Cain, of his judgment, does not make him an improper party to the suit. The action is in the name of the parties having the legal interest in the contract.

The judgment of the county court is reversed, and judgment for the plaintiffs for the amount of the damages and costs recovered by Cain against Washburn, together with the plaintiffs’ expenses in de-> fending that suit.