[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 296 There is no difficulty in determining under which "aspect" of the charge the jury found their verdict; and of course none in discerning what facts were found by them and what allegations were negatived. The case states that "the jury found a verdict for the plaintiff for $2,369.59, being the principal and interest of the mortgage on March 28, 1848, viz., $1,293.55, and the interest due thereon." If the jury had found the facts to be as hypothetically presented *Page 297 by the first aspect of the charge, their verdict must have been, as directed by the court, for the defendant. The verdict, therefore, finds that it was not true that Carlile applied for and Townsend agreed to make a loan of $1,500 in money upon such a bond and guaranty, and that defendant made the guaranty to carry out that arrangement, and that afterward Townsend and Carlile changed the agreement without defendant's consent, by substituting the mortgage and note for the money to be loaned. So if the jury had found the facts as supposed by the second aspect of the charge, then, in accordance with the direction, they must have found a verdict for the plaintiff for the whole amount of the bond, with interest; and, therefore, their finding has negatived the allegation of the plaintiff that defendant executed the guaranty with full knowledge that the consideration for the bond was to be the note and mortgage. The verdict is found under the third aspect, and it involves as the finding of the jury, these facts: that the arrangement between Townsend and Carlile was, that for the bond of the latter to be guaranteed by defendant, Townsend would assign the mortgage and give up the note of Carlile; that Carlile, to induce defendant to make the guaranty, represented to him that Townsend was to advance on the bond and guaranty $1,500 in money to enable Carlile to go into the milling business in Ohio; that Townsend received the bond and guaranty without any knowledge that such representations had been made by Carlile, but believing in good faith that defendant understood the actual arrangement between him and Carlile, and under which they were to be made; and, in pursuance of that arrangement, in good faith, assigned the mortgage and gave up Carlile's note for the bond and guaranty.
The court, at the trial, held that, upon these facts, the plaintiff was entitled to recover the amount actually advanced by Townsend on the bond and guaranty, to wit, the value of the mortgage assigned, at the time of making the assignment, with interest. As we have seen, the jury gave their verdict for that value only. It is not necessary to discuss whether this limitation of amount was right. If erroneous, *Page 298 it was so far to the benefit of the defendant, and he has no cause to complain. It is the law, that the rights of a surety arestrictissimi juris, and, consequently, in any case where the surety can say, non hœc fœdera veni — this is not the precise contract I made — the law attaches to him no liability. This is the principle applied with uniform strictness in the numerous authorities cited by the learned counsel for the appellant. If it be applicable to this case, there is no reason why it should not afford protection to the defendant. But in this case, the agreement which the jury have found to have been made between the principal and Townsend, has been, as they also have found, carried out in good faith by the latter. The bond and guaranty brought to him are such as the agreement required; and there is nothing about them to indicate that they were not designed for the exact purposes of the agreement. It is not, therefore, the case of a departure from or change in any respect of the agreement between the principal and the party with whom he was dealing, without the knowledge or consent of the surety. Neither is the guaranty nor the bond changed from the exact form in which it was made, so that really, as it appears to me, the question in this case steers quite clear of the principles upon which the courts so vigilantly guard the rights of sureties. The real question is, which of two innocent parties shall suffer by a fraud perpetrated by another. Townsend contracted to sell his mortgage and cancel his note, upon receiving a bond from Carlile for their amount payable in two years, and guaranteed by defendant. Such a bond and guaranty, properly executed, are brought to him, and in good faith he receives them and transfers the mortgage and delivers the note. But it turns out, when the guaranty is sought to be enforced, that Carlile induced defendant to make it by a false misrepresentation as to the consideration Townsend was to give for it. This is no defense; because, in such case, the law imposes the loss upon the party who, by his misplaced confidence, has enabled another, on the faith of his obligation, to obtain the money or property of a third person, who has dealt in good faith, relying on such *Page 299 obligation. The doctrine of estoppel steps in to prevent the assertion of such a defense, because it is more consonant with public policy as well as sound morals, that he, who by permitting himself to be deceived, has put it in the power of another to defraud an innocent third party, should himself suffer rather than the latter. It is upon this principle, as I understand it, that this court proceeded in Van Duzer v. Howe (21 N.Y., 531), rather than upon any distinctive rules applicable to commercial paper. In that case the defendants wrote their acceptance upon a bill and intrusted it to Webb, in blank as to the amount, relying on his promise that it should not be filled up for more than $1,000. Webb violated his promise by inserting a greater amount, for which the plaintiff, without knowledge of the fraud, discounted it, paying the proceeds to Webb. The court held that defendant must suffer the consequence of his misplaced confidence. One of the cases cited by DENIO, J., in his opinion, is strongly illustrative of the principle. (Montague v.Perkins, 22 Eng. Law and Eq., 516.) In that case defendant intrusted one Swinburn with blank acceptances to take up other bills which he had accepted for his accommodation. Twelve years afterward Swinburn wrote a bill of exchange for £ 200 on one of the blank acceptances, payable to his own order, and it was negotiated to plaintiff. The jury found that the blank was not filled up within a reasonable time, and gave their verdict for the defendant. The plaintiff moved for leave to enter a verdict in his favor, and, after elaborate argument, the court granted the motion. It was argued that the authority to Swinburn was to fill up the bill within a reasonable time, but the chief justice said this was not a case with reference to the rights of a bonafide holder for value and that "the rules applicable to the question of authority on this bill of exchange do not differ from those which ought to govern the question if it arose in the ordinary case between principal and agent." (See opinion of DENIO, J., in Van Duzer v. Howe, supra, and the numerous cases there cited by him, 4 Kern., 623.)
There was no error in refusing to charge as requested by *Page 300 defendant's counsel. The first proposition involved nothing more than the effect of a failure on the part of Townsend to communicate to defendant the facts as to the consideration he was giving for the bond and guaranty. If Townsend was acting in entire good faith in the transaction, and in the belief that defendant knew its character and object, there was no occasion or obligation to communicate the consideration to him. The mere omission to do so would not affect his legal rights independently of any question of fraud or concealment. The second proposition presents the same idea strengthened by the suggestion of an interview in which the opportunity to make the communication might have been improved. The same answer applies. No legal results necessarily follow from the facts supposed by the requests, and their force as evidence tending to show bad faith or collusion, were, we must assume, rightly presented to and disposed of by the jury.
The elaborate arguments of the counsel for the appellant, upon the questions of fact involved in the case, are not proper for our consideration; but as they are based chiefly or to some extent on a supposed conclusive admission of the pleadings, it is proper to advert to that question. Obviously for the first time in the progress of the cause, it is now discovered and insisted that the important fact of Townsend's knowledge that Carlile was deceiving defendant, is admitted by the failure to deny it in the reply. The parties have litigated this question with great vigor through two trials, by witnesses and proofs, and through appeals reaching once before to this tribunal; and it may with some force be said, in the language of the counsel on another point, "it is error for a court to determine a case on a point not raised." If the point were fairly raised upon the pleadings, I should think it disposed of by Sibley v. Waffle (16 N.Y., 180). In that case the original pleadings were made at the time when a reply to new matter was necessary under the Code. There was no reply, but before the trial the amendment of the Code requiring a reply to new matter constituting a counterclaim only, was passed. This court held that the answer was at issue *Page 301 by force of the amendment. A fortiori should that ruling apply to a case where there is a reply which is supposed to put in issue the new matter, and which certainly does so indirectly by averring facts totally inconsistent therewith.
I have looked carefully into the pleadings, and taking the whole of the answer and reply into consideration, I think it is a forced construction that can wring an admission out of them of the character claimed.
I am of opinion that the judgment should be affirmed.