Vol. IV.] NEWELL v. HOMER. [No. 2. ings of the jury are availed of to inform the court in matters of controverted facts, which may become material in settling the final decree. They may be disregarded in whole or in part, if on the final hearing they are not deemed important, or new issues may be framed from time to time and submitted if the rights of the parties may seem to require it. Shailer v. Bumstead, 99 Mass. 112, 131. An appeal lies from an interlocutory order refusing to submit issues requested, and if it is apparent that the matter ought to be first determined by the full court, a stay of proceedings may be had for that purpose. Gen. Sts. c. 113, §§ 10, 12; Stockbridge Iron Co. v. Hudson Iron Co. 102 Mass. 45; Wright v. Wright, 13 Allen, 207. If the exception here taken could be treated as in the nature of an appeal, to be disposed of before settling the final decree, we cannot see in the case presented that any injustice has been done, by submitting it upon the original issues. Those issues distinctly embrace the several propositions above stated, which the appellant must establish, and upon which the findings of the jury against her are decisive. The amendments and additions requested contain other allegations and denials, but they cannot be material so long as the original issues are not maintained. Additional issues, affirming and denying what are alleged to be partial contents of the instruments in question, were properly refused, because the contents of the whole instrument must be proved, before it can stand as a valid testamentary disposition. Johnson's Will, 40 Conn. 587; Huble v. Clark, 1 Hagg. Eccl. 115; Knapp v. Knapp, 6 Seld. 276. The appellant excepts to the refusal of the judge to delay the trial or continue the case on account of the absence of witnesses whose testimony was said to be material. She did not attempt to bring her application within the rule which requires an affidavit of the testimony expected from these witnesses, with a statement of the grounds of such expectation, but she claims that the circumstances connected with their absence, and their alleged relation to the case, were so peculiar as to require that the ordinary rule should be dispensed with. But there is nothing in the testimony, or in the facts developed at the trial, which makes this case exceptional, or requires us, if it was in our power so to do, as a matter of law, to revise the discretion exercised by the judge in refusing further delay. The respondents ought not to be subjected to further delay upon a mere suspicion or conjecture that absent witnesses will testify to some important and material fact. In the course of the trial, numerous exceptions were taken to the exclusion of evidence offered by the appellant. This evidence consisted partly of written documents, and largely of hearsay declarations of her own witnesses and others. Written examinations taken in the probate court upon her complaint were offered, not for the purpose of contradicting the witnesses, but for the purpose of proving, as alleged in the opening to the jury, that there was a conspiracy on the part of some of her witnesses, entered into with the respondents and others, including her former counsel, to prevent her from proving the will and codicils, and that the examinations offered were false proceedings got up in the interest of the respondents and containing in themselves evidence of these facts. Vol. IV.] NEWELL v. HOMER. [No. 2. The examinations referred to are annexed to the bill of exceptions, and upon inspection do not appear to have any tendency to prove the alleged conspiracy; and if they had, the evidence would be wholly useless unless accompanied with evidence sufficient to justify the jury in finding the execution, contents, and loss of the will and codicils, since the testator's death. These cannot be established as testamentary, by proving a conspiracy to suppress papers the contents of which cannot be shown. To control the testimony of her own witness, the appellant offered a petition to the probate court signed by him, showing, as she contended, that the witness believed that a will had been left by the testator other than the one first presented for probate; but the statements in the petition, fairly construed, do not contradict his testimony; and if they did, they could only be admissible under the St. of 1869, c. 425, to contradict the witness, after a foundation is laid by calling his attention to the circumstances and occasion of the supposed statements. They can under no circumstances be used as substantive evidence to support her case. It would be unprofitable to examine in detail all the remaining exceptions taken to the exclusion of evidence; many of them are but repetitions of the same objection raised by varying the form of the interrogatory. Most of the evidence offered was mere hearsay, for the purpose of proving the alleged conspiracy, and open to all the objections above stated to the admission of the written document; some of it was called for on cross-examination by leading questions to the appellant's own witnesses; much was wholly immaterial and remote, with no tendency to support the real issues of the case; some called for the contents of written papers not produced or accounted for; or attempted to prove the handwriting of such papers by witnesses not qualified as experts and not acquainted with the particular handwriting in question. It is sufficient to say that we cannot see that any evidence was excluded, which was legally competent to maintain the case of the appellant upon the issues presented, and which should have been allowed to go to the jury. Upon the whole case, we cannot doubt that the jury were rightly directed to return their verdict for the respondents upon all the issues. The only evidence of the execution of any testamentary document, except the original will of 1841 under which the respondents claim, is the testimony of one witness, who says that in 1857 or 1858 he with others witnessed an instrument which the testator either said was his will, or that it was a codicil to his will. No testimony was produced of the contents of this instrument, nor was any attempt made to otherwise identify it. The persons whose names appeared as witnesses upon the papers propounded as codicils were called by the appellant, and each testified that he never witnessed any testamentary paper whatever for the alleged testator. There was no testimony whatever that such papers were in existence uncancelled and unrevoked at the time of the testator's death, and of course there was no evidence of their subsequent suppression by any one. Under these circumstances, to permit the copies here presented to be established as the lawful testamentary dispositions of the alleged testator, would be largely to destroy the security which is afforded to the exercise of the right to control the succession to one's property by will. Exceptions overruled. The outgoing members of a firm that is dissolved, are sureties on a partnership debt for those who remain, but they are discharged if the latter, without their knowledge or consent, substitute a new debt, that increases their liability. OPINION of the court by COOLEY, CH. J. The legal questions in this case arise upon the following facts: Prior to June, 1867, Eldad Smith, Isaac Place, and Francis B. Owen were partners in trade, under the firm name of Place, Smith & Owen, and as such became indebted to defendants in error in the sum of $969, on book account. In the month mentioned the firm was dissolved by mutual consent, Place purchasing the assets of his copartners, and agreeing to pay off the partnership liabilities, including that to the defendants in error. On the second day of the following month Place informed the defendants in error of this arrangement, and that he had taken the assets and assumed the liabilities of the firm, and they, without the consent or knowledge of Smith and Owen, took from Place a note for the amount of the firm indebtedness to them, payable at one day, with ten per centum interest. They did not agree to receive this note in payment of the partnership indebtedness, but they kept it and continued their dealings with Place, who made payments upon it. The payments, however, did not keep down the interest. Place, in 1872, became insolvent and made an assignment, and Smith was then called upon to make payment of the note. This was the first notice he had that he was looked to for payment. On his declining to make payment, suit was brought on the original indebtedness and judgment recovered. The position taken by the plaintiffs below was that, as they had never received payment of their bill for merchandise, they were entitled to recover it of those who made the debt: the giving of the note which still remained unpaid being immaterial. On behalf of Smith it was contended that by the arrangement between Place and his copartners, the latter, as between the three, became the principal debtor, and that from the time when the creditors were informed of this arrangement they were bound to regard Place as principal debtor and Smith and Owen as sureties, and that any dealing of the creditors with the principal to the injury of the sureties would have the effect to release them from liability; and it is further contended that the taking of the note from Place, and thereby giving him time, however short, was in law presumptively injurious. Upon this state of facts the following questions have been argued in this court: Vol. IV.] SMITH V. SHELDON. [No. 2. 1. Was the note given by Place in the copartnership name for the copartnership indebtedness, but given after the dissolution, binding upon Smith and Owen ? 2. If Smith and Owen were not bound by the note, were they entitled to the rights of sureties? And 3. Did the taking of the note given by Place discharge Smith and Owen from their former liability? On the first point it is argued in support of the judgment that when a copartnership is dissolved the partner who is intrusted with the settlement of the concern should be held to have implied authority to give notes in settlement. On the other hand, it is insisted that in law he has no such authority, and that if he assumes, as was done in this case, to give a note in the partnership name, it will in law be his individual note only. Whatever might be the case if the obligation which was given had been a mere acknowledgment of the amount due in the form of a due bill, or I. O. U., we are satisfied that there is no good reason for recognizing in the partner who is to adjust the business of the concern an implied authority to execute such a note as was given in this case. This note was something more than a mere acknowledgment of indebtedness, and it bore interest at a large rate. It was in every respect a new contract. The liability of the parties upon their indebtedness would be increased by it if valid, and their rights might be seriously compromised by the execution of paper payable at a considerable time in the future if the partner intrusted with the adjustment of their concerns were authorized to make new contracts. It was assumed in Farmers' & Mechanics' Bank v. Kercheval, 2 Mich. 506, 519, that the law was well settled that no such implied authority existed; and we are not aware that this has before been questioned in this state. See Pennoyer v. David, 8 Mich. 407. We think it much safer to require express authority when such obligations are contemplated, than to leave one party at liberty to execute at discretion new contracts of this nature, which may postpone for an indefinite period the settlement of their concerns, when a settlement is the very purpose for which he is to act at all. For a determination of the question whether Smith and Owen were entitled to the rights of sureties, it seems only necessary to point out the relative positions of the several parties as regards the partnership debt. Place by the arrangement had agreed to pay this debt, and as between himself and Smith and Owen he was legally bound to do so. But Smith and Owen were also liable to the creditors equally with Place, and the latter might look to all three together. Had they done so, and made collection from Smith and Owen, these parties would have been entitled to demand indemnity from Place. This we believe to be a correct statement of the relative rights and obligations of all. Now a surety, as we understand it, is a person who, being liable to pay a debt or perform an obligation, is entitled, if it is enforced against him, to be indemnified by some other person, who ought himself to have made payment or performed before the surety was compelled to do so. It is immaterial in what form the relation of principal and surety is established, or whether the creditor is or is not contracted with in the two capacities, as is often the case when notes are given or bonds taken. The relation Vol. IV.] SMITH V. Sheldon. [No. 2. is fixed by the arrangement and equities between the debtors or obligors, and may be known to the creditor or wholly unknown. If it is unknown to him, his rights are in no manner affected by it; but if he knows that one party is surety merely, it is only just to require of him that in any subseqent action he may take regarding the debt, he shall not lose sight of the surety's equities. That Smith and Owen were sureties for Place, and the latter was principal debtor after the dissolution of the copartnership, seems to us unquestionable. It was then the duty of Place to pay this debt, and save them from being called upon for the amount. But if the creditors, having a right to proceed against them all, should take steps for that purpose, the duty of Place to indemnify and the right of Smith and Owen to demand indemnity were clear. Every element of suretyship is here present; as much as if in contracting an original indebtedness, the contract itself has been made to show on its face that one of the obligors was surety merely. As already stated, it is immaterial how the fact is established, or whether the creditor is or is not a party to the arrangement which establishes it. This view of the position of the parties indicates clearly the right of Smith and Owen to the ordinary rights and equities of sureties. The cases which have held that retiring partners thus situated are to be treated as sureties merely, have attempted no change in the law, but are entirely in harmony with older authorities, which have only applied the like principle to different states of facts, where the relative position of the parties as regards the debt was precisely the same. We do not regard them as working any innovation whatever. The cases we particularly refer to are Oakely v. Passeller, 4 Cl. & Fin. 207; Wilson v. Lloyd, Law R. 16 Eq. Cas. 60, and Mellard v. Thorn, 56 N. Y. 402. And it follows as a necessary result from what has been stated, that Smith and Owen were discharged by the arrangement made by the creditors with Place. They took his note on time, with knowledge that Place had become the principal debtor, and without the consent or knowledge of the sureties. They thereby endangered the security of the sureties, and, as the event has proved, indulged Place until the security became of no value. True they gave but very short time in the first instance; but as was remarked by the Vice Chancellor in Wilson v. Lloyd, L. R. 16 Eq. Cas. 60, 71, "the length of time makes no kind of difference." The time was the same in Fellows v. Prentiss, 3 Denio, 512, where the surety was also held discharged; and see Okie v. Spencer, 2 Wheat. 253. But that indulgence beyond the time fixed was contemplated when the note was given, is manifest from the fact that it was made payable with interest. In a legal point of view this would be immaterial, but it has a bearing on the equities, and it shows that the creditors received or bargained for a consideration for the very indulgence which was granted, and which ended in the insolvency of Place. When they thus bargain for an advantage which the sureties are not to share with them, it is neither right nor lawful for them to turn over to the sureties all the risks. This is the legal view of such a transaction; and in most cases it works substantial justice. The judgment must be reversed with costs, and a new trial ordered. |