These were actions brought by Thurston, Gardner, Co. of the City of Providence, against Charles T. James, to recover the amount of three promissory notes, two of them for $6,000 each, and one for $5,000. The notes were signed by the defendant, and two of them were indorsed by Alfred R. Fiske, son-in-law of the defendant. The note for $5,000 had no indorser upon it. There were several other causes of action embraced in the declarations, some in reference to which there was no dispute at the trial. There were three matters of claim under the money counts of the declaration, which were disputed on the trial. Upon the rulings and charge of the court, in reference to these three claims, as well as in reference to the three notes aforementioned, exceptions were taken, which are to be considered in determining this motion for a new trial.
The first three exceptions relate to the rulings of the court upon the claims set up under the money counts. The plaintiff, at the request of the defendant, had caused a sum of money to be placed to the credit of a third person in a banking institution in New York, and had charged the money to the person to *Page 111 whose credit it was placed. The defendant, at the time of making the request, desired that the plaintiffs' name should not be known in the transaction, and stated, that if the Sickles' patent was obtained, it would be all right; if not the money would be paid back. Subsequently the plaintiffs wrote to the party in New York, to whose credit the money was placed, on the subject, and received an answer denying all knowledge of the plaintiffs in reference to the money, and all accountability to them; saying, that when he saw the defendant, he would remind him what he paid him the money for. In a letter from the plaintiffs to the defendant the matter was spoken of as the loan to the third person. The defendant requested the court to charge the jury, that he was not liable for the amount claimed, unless a promise in writing to pay it was produced and proved. The court did not so charge; but did charge, that unless the jury were satisfied from the proof, that the money was paid to the use of the defendant and at his request, he was not liable in this action. It is plain, that there was no error in this charge. It was of no importance whether the promise was in writing or not. If the money was paid for the defendant's use, and at his request, he was liable whether the promise was verbal or written. If it was the debt of another, the defendant would not be liable under the money counts in the declaration, whether the promise was in writing or not. Under this charge, the jury must have found that the money was advanced on the personal credit of the defendant. To this fact the plaintiff, Gardner, on his direct examination in the cause, testified. We think the matter was properly left to the jury, and their verdict ought to be satisfactory.
The second and third exceptions are of the same character, as to the claims of the plaintiffs for money advanced to Frieze, upon the Wilson note, and are overruled, on the same grounds.
One other ground is however embraced in the third exception. It seems that the amount of a note for $500, less the discount, was advanced by the plaintiffs to the defendant, which note was made by James J. Wilson, and was payable directly to the plaintiffs. This note was not indorsed by the defendant but was delivered by him to the plaintiffs, he requesting *Page 112 them to collect it. At the maturity of the note, it was not paid, and the plaintiffs sent it to New York, where it was sold for less than the amount due upon it. The amount collected was credited to the defendant, and the balance was claimed in this suit. The sale was made without the knowledge of the defendant; but on learning the fact he pronounced the sale a good one, and promised the plaintiffs to pay them the balance. We think the jury had a right to infer from this ratification of the sale, an authority to make it; and the judge did not err in refusing to charge the jury, that by reason of this sale the defendant was discharged from his liability.
The instructions claimed by the defendant as to the contract of October 29, 1852, could not properly have been given. This contract provided, that the defendant should perform certain services for the plaintiffs, for which he was to receive certain payments, which payments were by the agreement to be indorsed on the notes for $6,000 and $5,000, above referred to, as they were earned, until the full amount of the notes was paid; and further, if the sums to be thus earned by the defendant should not be sufficient to pay the notes in full, at the time when they became due, then the notes were to be renewed for the balance for two years. This contract bore date subsequent to the date of the notes. At the times when the notes became due, nothing had been earned by the defendant, to be applied on the notes under the contract. The notes had all become due when the suit was commenced; no part of them had been paid, and no renewal had been made or offered. The court were asked to instruct the jury, that under the contract, the defendant had a right to pay, and was only liable to pay in his services as specified in said contract; and consequently that the plaintiffs could not recover the amount of the notes in this suit. The plaintiffs had made a contract with the defendant collateral to the notes, which the defendant had not performed, and therefore he claimed, that he was not liable to perform the principal contract. The terms of the collateral contract can bear no such absurd interpretation. The court instructed the jury, that though by the terms of this contract the defendant had a right to pay in his services, yet if he *Page 113 had not so paid, he was liable in a suit on the notes. By the fifth exception it appears, that the court refused to instruct the jury, that said contract being in evidence, it was a condition precedent, that the plaintiffs should not commence their action on the notes until the expiration of five years from the date of said notes. There was no such condition expressed, but merely an agreement, that if the notes should not be fully paid by the application of the defendant's earnings at their maturity, they should then be renewed for two years. If there was such a condition precedent, it must be inferred from this agreement for renewal; and in that case, the agreement would amount to an agreement not to sue for two years after the maturity of the notes. If the defendant had performed his promise under the collateral contract, i.e. made the contemplated payments before the maturity of the notes, and then renewed his notes for any balance that might have remained due, the purpose of the collateral contract would have been attained, and the plaintiffs would have been liable on the collateral contract for damages if they had refused to renew. But the evidence showed, that he had made no payment under that contract nor renewed the notes; and with respect to one of the notes in suit, the true time to which a renewal would have extended the liability of the defendant had expired when these suits were commenced.
It is well settled, that an agreement, or a covenant not to sue for a given time, does not amount to a defeasance and cannot avail as such, but is a covenant only on which an action may be brought for damages; though a covenant never to sue may avail as a release to avoid circuity of action. Dorr v. Tuttle,4 Mass. 414; Perkins et al. v. Gilman, 8 Pick. 229; CentralBank v. Willard, 17 Pick. 150; Allen v. Kimball, 23 Pick. 473; Chandler v. Herrick, 19 Johns. Rep. 129. There was, therefore, no error in the refusal of the court to instruct the jury as requested.
As to the alleged error complained of in the rulings of the court with regard to whether the defendant was a surety on the notes sued, and discharged by the acts of the plaintiffs, we cannot see that it would have been proper for the court to have given instructions more favorable for the defendant than were *Page 114 given; or, that there is, in what the court charged or omitted to charge, any reason for granting to the defendant a new trial. The court permitted the defendant to introduce evidence which, as he claimed, went to show that the defendant, though appearing on the face of the notes in suit as principal, was, in reality, a surety only, and charged the jury, that if from the evidence they found that he stood in the relation of a surety he would be entitled to the equitable defence which a surety has by law, when the holder of the note has given time to the principal, if in this case they found that time had been given.
The case shows, that at the time when the notes were given by the defendants, Alfred R. Fiske received from the plaintiffs a conveyance of one quarter interest in the copartnership property of Thurston, Gardner, Co. The defendant testified, that this conveyance was the consideration for the notes, two of which were signed by him and indorsed by Fiske, and one of them was signed by the defendant alone. The court were asked to charge the jury, that if they found that this conveyance to Fiske entered into and formed the consideration, or a part of the consideration of the notes, then said Fiske was the original or contracting party on the notes, and the defendant stood in the relation of guarantor or surety. The court refused to give this instruction; but left the fact to be found by the jury from the whole evidence in the case. There can be no doubt as to the propriety of the court's refusal to charge as requested. The fact of the conveyance certainly was not conclusive upon the point. The defendant might buy the property for his son-in-law, and direct the conveyance to be made to him. The fact that one of these notes had not the name of Fiske upon it, and the fact that by the collateral contract provision was made that all the notes might be paid by the personal services of the defendant, would indicate that the defendant was the principal on the notes. How could Fiske be principal on a note which he had not signed at all? Certainly the instruction asked would have been improper had it been given.
It also appeared, that on the 23d of June, A.D. 1857, Fiske had conveyed his one quarter part of the copartnership property *Page 115 to Henry W. Gardner, one of the plaintiffs, taking from him a bond that in case of the payment of the said notes and his other liabilities to the firm of Thurston, Gardner, Co. at any time within five years, he would make conveyance of said property to the said Fiske's wife. The court were asked, in view of that fact, to instruct the jury, that the acceptance of that conveyance discharged the defendant from his liability on the notes to the extent of the value of such property. The court did not so charge. Clearly they could not so charge. In the first place, this conveyance was not made to the plaintiffs; and though the bond given by Gardner to Fiske contemplated a holding of the property as security until the notes were paid, the plaintiffs had no other than a mortgage interest in it, and that not standing in their names. It could not, therefore, be held as payment whereby the defendant was discharged. Nor could the taking of this conveyance be held, as the defendant requested the court to charge that it should be, as a giving of time on the contract for payment of the notes, so as to discharge the defendant, considering him as surety on the notes. There was, in the fact of taking this conveyance, even if it had been taken by the plaintiffs, no giving of time, in the sense in which the law holds the giving of time to the principal to be a discharge of the surety on a note. The plaintiffs were not debarred from prosecuting their claim against Fiske the next day after the contract was made. Nor was there anything to prevent the defendant from paying the notes and pursuing his remedy against Fiske, if any he had, whenever he might choose to do so. Under such circumstances, the taking of security can work no injury to the defendant, even if he were a surety. Indeed it must be to his advantage; as by a proper proceeding in equity, if he were a surety, he could make that security enure to his own benefit, to the extent of its value.
On the whole, among the many exceptions taken to the rulings of the court in this case, we find no error of which we think the defendant can complain, and no ground for awarding to him a new trial.
Motion denied with costs. *Page 116