[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 318 When the plea of the defendant, Maltby Strong, setting up the agreement of the 12th of August, 1839, in bar to the relief sought by the bill, was first brought before the chancellor, it was objected against by the plaintiffs, both in respect to form and substance; but was relied on by the defendant *Page 320 as containing matter which went to his complete discharge from the judgment which it was the object of the bill to enforce. The chancellor, in his opinion, discussed the merits of the plea, and came to the conclusion that, if it was true, Maltby Strong was discharged from the judgment. But the plea was accompanied by an answer covering some part of the relief and discovery embraced by the former, which operated technically to overrule it; and it was therefore ordered to stand for an answer, with liberty to the plaintiffs to except. On appeal from this order by the plaintiffs to the court for the correction of errors, they again contended that the matter of the plea did not constitute a defence. And this appears to have been the only question made in that court. It was, however, determined that the rights and obligations of the parties were so materially affected and changed by the agreement set up in the plea, as that the defendant Maltby Strong, standing in the relation of surety to Joseph Strong, was discharged, and hence that the matter of the plea was a substantial defence. The order of the chancellor was therefore affirmed. (See 10 Paige, 11; 7 Hill, 250.)
In my judgment this was a conclusive determination of the main question presented on the present argument. The merits of the plea were necessarily involved in these decisions. If it had not stated good matter of defence it would have been absolutely overruled, and not ordered to stand for an answer. This order of itself implied, what the opinions delivered in support of it maintained; that the plea contained a substantial answer to the relief sought by the bill. The defect which deprived it of efficacy as a plea, was purely of a technical character. The matter of the plea was approved, while the manner of it only was condemned; and by ordering it to stand with the effect of an answer, its merits were as directly and conclusively passed upon by the court, as if it had been allowed as a plea. Whether, taken in connection with the answer which accompanied it, it was full and sufficient, could only have been determined upon exception. But no question of that sort arises here. We must, therefore, hold that the order of the chancellor, which was affirmed *Page 321 on appeal, was a conclusive determination between these parties, that the matter of the plea, if true, was a good defence. (Mitf.Ch. Pl. 302, 304; Orcutt v. Orms, 3 Paige, 459; 1 Barb. Ch. Pr. 122.)
The agreement set forth in the plea being proved, the suit, so far as the plea extends, is barred, unless there is something in the other grounds relied on by the learned counsel for the appellants, which must be held to qualify the operation of the agreement, or to deprive it of legal effect. We might find enough in the evidence to warrant us in holding that the agreement was made with the knowledge and approbation of Maltby Strong, if it were not for the very explicit denials of this fact contained in the plea and answer. These are verified by the oath of the defendant, and are responsive to the bill, and at the utmost cannot be considered as contradicted by more than the testimony of one witness. The defendant's statement must therefore be taken as the truth of the case.
I find no evidence of any representation on the part of Joseph Strong that Maltby had authorized or consented to the making of the agreement. The witness, Abner Pratt, was interrogated on this point, but he did not feel assured that any such representation was made. He stated, however, that it was his understanding at the time of the agreement, that Joseph Strong was entering into in behalf of himself and Maltby Strong. Whether he derived this impression from the fitness of the thing, from the recital in the agreement, or from Joseph Strong's going out, as he supposed, to consult his brother, the witness did not state, nor is it very material; for, unless Joseph Strong, or some one who was instrumental in procuring the agreement, gave out in some manner, and so as to induce Allcott to believe that Maltby Strong consented to it, the mere impressions of the witness, as stated by him, can have no influence in the determination of this question. He states no fact from which the court can infer that Joseph Strong made the representation referred to.
It was urged, however, that the agreement on its face affords evidence of such a representation, by reciting that it was made *Page 322 "in behalf of the respective parties;" i.e. the plaintiffs and the defendants Joseph and Maltby Strong. Taking these words as the language of Joseph Strong, they do not fairly import more than that he assumed to act for the benefit of himself and Maltby Strong, leaving it in doubt whether he acted by express authority or not. As to that the writing is silent. That he might thus have assumed to act without misleading Allcott in respect to his authority or the consent of Maltby Strong, is obvious from the circumstances of the case. Allcott knew that Joseph Strong was the principal debtor, who ought in conscience to satisfy the judgment. It was his right and his duty to arrange for its payment. In doing so he was discharging his own proper obligation, and also relieving his surety from the burthen of a debt. He was thus in a sense acting in behalf of that surety. If Allcott had desired the express consent or authority of the latter, it is reasonable to suppose that he would have made a point of it, and that the language employed by the parties in the course of their negotiation, would have shown that he had done so. But this does not appear from the evidence. The only witness who was present, could not state that any verbal representation was made on the subject; and as the language of the recital cannot be held fairly to import that Joseph Strong represented himself as acting with the authority or consent of his brother, the objection to the agreement, based on the assumption of such a false representation, cannot be sustained.
In the absence of all fraud, it was competent for Joseph Strong to agree for the payment and discharge of the judgment, without the authority or consent of Maltby Strong; and I perceive nothing in the case which should prevent the agreement in question from taking full effect.
I am of the opinion that the decree of the chancellor should be affirmed.
All the judges concurred.