Suydam v. Barber.

fully paid out of what must be assumed to have been Shelton's property.

There must be judgment for the defendants, dismissing the complaint with costs.

HENRY SUYDAM, Jr., ALMET REED, and DANIEL R. SUYDAM v. WILLIAM B. BARBER, GEORGE W. GIRTY, and JAMES DORAN.

A firm in Missouri drew two bills of exchange upon a firm in New York, one dated in St. Louis, Missouri, and the other in Ohio. The firm in New York accepted and paid the bills, not having any funds of the drawers in their hands. Barber, one of the members of the firm in Missouri, was sued in a tribunal of that state, upon the bills, without joining his partners, the two other defendants, in this action. After pleading what is equivalent to the general issue, he gave a relicta, and thereupon judgment was rendered against him for the amount of the bills, interests, and costs.

Two statutes of Missouri were produced in evidence. By one of them it is provided "that all contracts which by the common law are joint only, shall be construed to be joint and several; next, in all cases of joint obligations, or joint assumptions of copartners, or others, suits may be brought and prosecuted against any one or more of those who are so liable." By the other statute it is enacted, "that every person who shall have a cause of action against several persons, and be entitled by law to only one satisfaction therefor, may bring suit thereon jointly, against all, or as many of the persons liable as he may think proper." Held, that the effect of these statutes was to convert the joint liability of the partners, upon the bills, into a joint and separate liability, and that an action in Missouri would clearly be maintainable against the other partners, notwithstanding the judgment, had the contract been made there.

Held, that the fact of the contract being made in the state of New York, where a different rule prevails, would not have been sufficient to defeat such an action in Missouri.

But held, that as the contract was made in this state, the money was advanced here, the plaintiffs lived here, and the action was brought here, the law of New York, and not that of Missouri, must govern; and as the separate judgment merged the demand, the defendants other than Barber were discharged.

(Before HOFFMAN, SLOSSON and WOODRUFF, J.J.)

Heard, April; decided, June, 1856.

THIS cause was tried before Oakley, Chief-Justice, by the consent of parties, without a jury, on the 22d of February, 1856. When the testimony on both sides was closed, the Judge dismissed the complaint; the plaintiffs' counsel excepted to the decision,

Suydam v. Barber.

and the Judge directed the exceptions to be heard in the first instance at the General Term, and judgment, in the mean time, to be suspended.

The following are the material facts, as they appear from the pleadings and the evidence on the trial.

The action was brought upon two bills of exchange drawn by the defendants in their partnership name of Barber, Girty, and Doran, upon the plaintiffs in New York, under the firm name of Suydam, Reed & Co.

The

The first of the bills was for $5,000, and dated the 25th of November, 1845, at four months; the second was dated the 26th of January, 1846, for $8,300, at forty-five days after date. first bill was dated at Cincinnati, in Ohio; the second at St. Louis, in Missouri. Both bills were accepted and paid by the plaintiffs. They had no funds of the defendants at that time, or since, in their hands to meet or pay such bills; and they, therefore, allege an indebtedness of the defendants to them, by reason of their advances to pay the same. The complaint asks for judgment for the sum of $6,630.89, being the balance due on such bills, including interest to the 16th of September, 1854.

The defence, as stated in the answer is, that a suit was brought in the St. Louis Court of Common Pleas, in the state of Missouri, in February, 1848, against the defendant Barber alone, for the same cause of action as is involved in the present suit; and that in October Term, 1848, judgment was recovered against said Barber for the amount of $6,415.10. There is a further allegation, that the judgment thus recovered has been fully satisfied.

At the trial it was admitted that the bills were duly endorsed by the payees thereof, and accepted and paid by the plaintiffs for the accommodation of the defendants. That the plaintiffs were without funds to pay the same; that the defendants provided no funds, and had not paid the bills.

The judgment record of the recovery in Missouri shows a declaration containing several counts. In one it is alleged that the defendant, in consideration that the plaintiffs, at the request of the defendant and for his accommodation, had accepted a certain bill of exchange for $8,300, (one of those now sued upon), drawn by Barber, Girty, and Doran, a firm of which the defendant was then a member, upon the plaintiffs, promised to furnish them with

Suydam v. Barber.

money to pay the bill; that neither he nor the said firm, nor any other person, had furnished such money; by reason whereof, they, the plaintiffs, had been obliged to pay, and did pay, the same. A similar statement is made as to the other bill of $5,000, now also sued upon.

There are other counts upon three other bills of exchange of $4,000 and $1,000 respectively, and the usual money counts; with an allegation of damage to the amount of $25,000.

The defendant Barber was personally served, according to the practice in Missouri, on the 7th of March, 1848; and appeared and filed a plea equivalent to the general issue.

On the 31st of October, 1848, he filed a relicta, and thereupon judgment was given for damages, assessed at $6,415.10. The language of the record upon the relicta is this: "Now at this day came the parties, by their attorneys, and the defendant withdraws his plea herein, and saying nothing farther in bar or preclusion of the plaintiff's action against him; therefore the court doth assess the damages of said plaintiff, sustained by reason of the non-performance of the promises and undertakings in this declaration mentioned from the instruments of writing, on which this action is founded, at the sum of $6,415.10. It is therefore considered that the plaintiffs recover of the defendant the damages aforesaid, in form aforesaid, by the court assessed, and also their costs and charges, and have therefor execution." It was agreed between the parties that execution on the judgment be stayed until the 1st of February, 1849. On the 5th of June, 1852, a paper was executed and made part of the record and proceedings as follows:

"SUYDAM, REED & Co., plaintiffs,

v.

WILLIAM B. BARBER, defendant.

"In the St. Louis Court of Common Pleas, judgment for $6415.10, October 31st, 1848, upon a conditional compromise made by defendant, by giving $500 cash, and five notes, for $500 each, at one, two, three, four and five years from date, pursuant to the terms and conditions of a bond of this date, from William B. Barber to Suydam, Reed & Co. I, as attorney, order the said

Suydam v. Barber.

judgment in this case to be satisfied of record, by order of the

plaintiffs.

BRITTAN A. HILL, for EAGER & HILL,

แ

"ST. LOUIS, June 1, 1852."

Attorneys of Record for plaintiffs.

The bond referred to in this instrument was dated the 1st of June, 1852, and was given by Barber alone to the plaintiffs, acknowledging himself indebted in the penalty of $12,000. It recited the judgment; that Barber had compromised the same, conditionally, upon the terms stated; that, in case of failure to pay the notes, or either of them, the cash paid, and the amount of any of the notes paid, was to be credited on the judgment, and the whole balance was to be deemed immediately due; that, upon. such considerations, the plaintiffs had ordered said judgment against Barber to be satisfied upon the conditions and by virtue of the bond; that the debts evidenced by the judgment were to remain in force until all the notes were paid. It then declared "that the satisfaction of such judgment is in nowise a payment of said debt." The condition was, that Barber would pay the notes at maturity, with interest thereon.

The introduction of this bond in evidence was objected to by the defendants' counsel.

Any difficulty, as to the point on which of the counts the assessment of damages was made, is removed by the admission of the plaintiffs, that the drafts in suit were among those mentioned in the judgment record.

A statute of Missouri, afterwards noticed, was read in evidence. The defendants' counsel moved, at the trial, to dismiss the complaint, on the ground that the recovery of the judgment in Missouri against the defendant Barber, and the subsequent entry of satisfaction thereof by the plaintiffs, extinguished the indebtedness of all the defendants upon the bills. This motion was granted, and the ruling excepted to. The exceptions were directed by the Judge to be heard, in the first instance, at General Term, and the judgment was suspended.

Willard, for the plaintiffs.

Carter, for the defendant Girty.

Suydam v. Barber.

HOFFMAN, J., delivered the opinion of the court. The question is, what is the effect of the judgment recovered in Missouri against Barber, one of the parties to the bill of exchange, upon the action here?

If that judgment had been recovered in any competent tribunal of this state, or of any sister state, without such a particular statute as exists in Missouri being before us, the case would be a simple one. The authorities are decisive, that a judgment recovered upon a note, given by one copartner for the debt of the firm, or a judgment against one upon the original cause of action, is a bar in favor of the rest, to a subsequent suit. (Peters v. Sandford, 1 Denio, 224; Pierce v. Kearney, 5 Hill, 85; Robertson v. Smith, 18 Johnson's Rep. 459; McMasters v. Vernon, 3 Duer's Sup. Court Rep. 250.)

The sections of the statute of Missouri referred to are as follows: "1st. All contracts which by the common law are joint only, shall be construed as joint and several. 2d. In all cases of joint obligations and joint assumptions of copartners or others, suits may be brought and prosecuted against any one or more of those who are so liable." (Rev. Stat. Missouri, 1845, p. 112.)

The first of the important questions discussed by counsel which I shall examine is, the effect which we are warranted in supposing would be given to the judgment in the courts of Missouri, if the present action had been brought there.

Besides the statute before quoted, there is another provision of some consequence. It is, that "every person who shall have a cause of action against several persons, and be entitled by law to only one satisfaction therefor, may bring suit thereon jointly against all, or as many of the persons liable, as he may think proper." (R. S. 812, § 20.)

The holder, then, of a bill of exchange or promissory note, accepted or drawn by partners, could sue one of them alone; and it seems almost necessarily to follow, that a recovery on such a suit for a separate liability would not preclude an action against the others. It becomes, by force of the statute, the ordinary case of a joint and several responsibility, when a recovery against one without actual satisfaction, would be no bar to an action against the other. This common law rule has been regulated by various statutes in many states. (Chitty on Pleadings, vol. i, p. 43, a. 4.)