
    Josiah Crofoot vs. Darius Moore.
    Bennington,
    
      February, 1831.
    A promise-to1 pay certain notes, signed by the promissee and another, is broken whew those -notes become payable; and the statute of limitations then^begins to run.
    Such a contract is not a contract of indemnity, but an action will lie upon it as soon as the pay-day arrives, without payment by the promissor.
    In such a case, the common counts will not aid the plaintiff to avoid the statute of limitations*
    This was an action of assumpsit, in several counts. The first count was special, setting forth a promise of the defendant to pay to one William Rockwell, the plaintiff’s part, to wit, one equal half of two notes, made payable at times then future, and signed by the plaintiff and one Luther Park, when the same should become due and payable, and to indemnify and save harmles the plaintiff from any loss or damage for, or by reason of, the non-payment of the same. To this all the common money counts were added. The defendant pleaded, 1st. non-assumpsit, and issue was joined ; and, 2dly. a plea in bar of actio non accrevit infra sex annos. To this the plaintiff replied, that the cause of action did accrue within six years, which be prayed might be enquired of by the country. At a jury trial in the county court, Hutchinson, Justice, presiding,the defendant obtained a verdict, and exceptions were taken to decisions, excluding evidence ; and the following bill of exceptions was allowed, on which the action was brought up to this Court:
    “ On the trial of this cause, the plaintiff offered in evidence, under the amended count of his declaration, the paper marked A, 'and the two notes therein referred to, (the execution thereof being admitted by the defendant,) which was objected to by the defendant; and the court rejected the same. Said writings are made a part of this case. The plaintiff then offered the same papers under the count for money paid, in connexion with other facts, to show that the notes referred loin said paper, were paid by the plaintiff. Which testimony was objected to by the defendant, and rejected by the court. Whereupon the plaintiff excepted to said decision, &c.”
    The paper refered to as marrked A, was as follows : “ Whereas Josiah Crófooi has executed his two certain notes with Luther Park, running to William Rockwell of Troy, for six tons of ochre each ; I hereby agree to pay his part of said notes, for which I have received a full consideration.
    
      Darius Moore.
    
    
      Bennington, 27th April, 1818.”
    . One of said notes was made payable May 20th, 1818, and the other in the month of June next following.
    
      Hall and Blaclcmerffor the plaintiff.
    
    1. The evidence ought to have been admitted under the special count. A contract should be declared upon according to its legal effect. — 1 Chit. PL 299. The declaration is in the common form of declaring by surety against the principal, stating the promise to be to pay and indemnify from damage. — 1 Chit. PI. 88 ; 3 Wils. 346. The contract was, in its legal effect, a contract of indemnity. The great object in the construction of contracts is, to give effect to the intention of the parties ; and the leading principle is, that words are so to he construed, as to answer that purpose; and to ascertain that intention, the situation of the parties, and the subject matter of their transactions, are to be taken into consideration. — 1 Swift's Dig. 221; 8 Mass. 214; 10 Mass. 379. There is nothing in the language of this contract, that forbids its being deemed a contract of indemnity, provided the subject matter of the contract required it to be so, in order to carry into effect the intention of the parties. It is in the common language of a principal to his surety — This is my debt to pay, and 1 will pay it when it becomes due. — 2 Chit. PI. 88. This would always be deemed a contract of indemnity ; because the surety would suffer no loss by the nonpayment of the notes at the days, unless he himself was called upon ; because the whole object of the parties would be answered by the principal’s saving the surety harmless against the notes. The contract between Crofoot and Moore placed them precisely in the situation of surety and principal. Crofoot owed a debt to Rockwell, payable in ochre, and Moore, (to use the language of the contract,) agreed to pay it, not to Crofoot, but to Rockwell. Moore, as between him and Crofoot, became the principal, and Crofoot stood as surety. That this was the relationship of the parties, appears from the obvious fact, that Crofoot could have no interest in having his contract to Rockwell literally performed. Whether the ochre, delivered by Moore to Rockwell, was much or little, of good or bad quality, or whether Moore paid the notes with one dollar, or got them without payment, it was all one to Crofoot. Crofoot suffered no damage from the non-delivery of ochre; unless, in consequence of it, he was called upon to pay1 . 1 , the notes ; and his damage would be just the amount he was obliged to pay, and no more. The contract related to the liability of Crofoot upon his notes to Rockwell, and not to the property, with which the notes might be paid ; and Moore’s contract would necessarily be fully performed, by saving him harmless from the consequences of that liability. If the promise had been, to pay Crofoot the amount of the Rockwell notes, it would have manifested an intention of the parties to provide Crofoot with a fund, with which to pay the notes. But to give this contract that construction, would be to give it new language, and violate the plain intent of the
    2. The evidence ought to have been admitted under the count for money paid. If, in pursuing the letter of this contract, the Court should be of opinion that it was broken by the non-payment of the Rockwell notes at the day they became due, still, as it would be uncertain, whether Crofoot would ever be injured thereby, his damages would be merely nominal. The cause of action would not be perfected until the plaintiff had paid the money; and, when paid, it being for a debt which Moore ought in equity to pay, the plaintiff would be entitled to recover under the count for money paid to his use. If the contract was broken by the non-payment of the notes, the case would be the same in principle as in case of an incumbrance of a mortgage upon land. A covenant against incumbrances would be broken on the execution of the deed ; but the grantee would be entitled to nominal damages only, unless he had extinguished the mortgage ; because,, the mortgage was subject to removal by the,grantor, as these notes were subject to payment by Moore. — Prescott vs. Trueman, 4 Mass. 630 ; Delavergue vs. JVorris, 7 Johns. 358 ; Hall vs. Deane, 13 Johns. 105 ; 16 Johns. 122. There is no good objection to the recovery of this money under this count; for it is a general rule, that when a person is compelled to pay money in consequence of a breach of contract by another, he may recover it back in an action for money paid.
    
      Bennett and Aiken, for defendant.
    
    The contract of Moore, offered in evidence by the plaintiff, is to have the same construction and operation as if the notes referred to had been actually recited in it at full length. Ingrafting into the contract the notes thus referred to, it will read t,hus : “Whereas, Josiah Crofoot has {i executed his two certain notes with Luther Park, bearing date « the 13th day of March 1818, running to William Rockwell, “ Troy, each for six tons of good, merchantable, pulverized, yel- “ low ochre, valued at twenty five dollars per ton, to be deliver- “ ed at the store of said Rockwell, in Troy ; one of said notes *' payable by the 20th day of May, 1818, and the other payable “ in the month of June, 1818 ; I hereby agree to pay the said “ Crofoofs part of said notes, for which I have received a full “ consideration. — Bennington, 2Hih April, 1818.”
    “ Darius Moore.”
    It is to be taken that the consideration, acknowledged by Moore to have been received, moved from Crofoot; and chat Crofoofs share of the notes was one equal half.
    1. The plaintiff has in his first count declared on this asa contract of indemnity ; — and the first inquiry is, has he not mista'ken its legal effect ? It is not, expressly, and on the face of it, a-contract of indemnity^ but is a promise, for the benefit of Cro-foot, to deliver to Rockwell six tons of good merchantable, pulverized, yellow ochre, by the 20th of May, 1818, and to deliver to-said Rockwell six other tons of like ochre in the course of the month of June, 1818, at said Rockwell’s store in Troy. This is an original contract between these parties, — to which Rockwell was an entire stranger, being a stranger to its consideration, and one on which he never could sustain an action. But, on the neglect of the defendant to deliver the ochre at the time and place stipulated in his contract, an action might, undoubtedly, have been sustained immediately, by Crojoot, to recover his damages. And, as to-ihe amount of his damages, no doubt could' be entertained ; for the contract itself gives the rule of damages — to wit, $25, for every tone of ochre not delivered. A promise to indemnify would have enlarged his liability, and given a different rule of damages. — ■ Hayden vs. Cabot, 17 Mass. Rep, 169. This enlarged liability lie has not assumed, at any rate, by the terms of his contract,. Will the law superadd to this contract a clause of indemnity % Promises in law exist only where there are no express stipulations-between the parties. — 2 T. R. 105. This is so well settled, that it may well be called “ an axiom in law.” — 6 T. R. 324. The law never raises a promise, unless the facts be such that justice-requires there should be a promise. But, having made an express-contract, the parties are bound by it, according to a fair construction- of its terms; and no rule of law or justice will warrant the addition of new and substantial provisions by implication. According to the plaintiff’s construction of this contract, no action ac-t0 k’m’ was damnified by being compelled to pay the notes. Accqrding to our construction, an action accrued immediately, on the neglect of Moore, to recover all he could ever be entitled to recover, and the statute of limitations then attached. In this point of view, the cases of Bishop vs. Little, 3 Greenl. R. 405 ; Batlley vs. Faulkner, 3 B. and A. 288; Short vs. McCarthy, id. 626 ; Bank of Utica vs. Childs, § Coioen, 238, cited in Balentine on Limitations, 86, note 1, are strongly analogous to the present, and go to sustain the doctrine contended for by the defendant. Crofoot does not stand in the relation of surety for Moore, and the law of principal and surety does not apply. Between Rockwell and Moore no privity ever existed,and, on Moore,Rockwell never had any claim whatsoever. Crojoot still continued to be debtor to Rockwell — and Moore, by his contract, became debtor to Crofoot. Between principal and surety, a state of facts exists, independently of any contract, on which the law will raise a promise. Here no facts exist, on which a promise can be raised, but the special contract itself. But, if they did stand in that relation, Crofoot, having taken his ¡special contract to secure himself, is bound by the provisions of ■that contract. — 2 T. R. 100. Suppose Crofoot had compromised the debt with Rockwell at 50 cents on the dollar. Could Moore have claimed the benefit of the discount ? In no point of view, therefore, is this a contract of indemnity, and of course the from
    2. The next inquiry is, whether this evidence is admissible under the common counts ? It is here to be remarked, that the plaintiff does not claim, that the contract has been rescinded, and, on that ground, seek to recover back the consideration. But he treats it, as it is, an open, subsisting, unrescinded contract, and -claims damages for the breach of it. He affirms it, and seeks to recover by virtue of it. It is further tobe remarked, that no facts exist, independent of the special contract, which would entitle the plaintiff to recover at all; but all his rights accrue from, and grow ■out of the special contract itself. The defendant does not con'trovert the doctrine, that indebitatus assumpsit will lie to recover a stipulated price, due upon a special contract, not under seal, ■where the contract has been completely performed, and a mere ■debtor duty thereby created ; or that the special contract, in such -case might be given in evidence under the common counts to as'certain the amount of damages. — 7 Crunch, 303. Nor does he -controvert the right of a party to sue in that form, where the services have been performed under a special contract, but not in act pursuance of it. — B. N. P. 139. These doctrines are not applicable to the present case. But he does insist, that the plaintiff, havine shown an open, subsisting, unrescinded contract, is not at , . , T liberty to abandon it,and resort to the common counts,without showing such fads, as ivculdhave entitled him to recover in this form of action, supposing no special contract had been made.— Cook vs. J\íunstone, 1 N. R. 351 ; Keyes vs. Stone, 5 Mass. R. 394 ; 14 Johns. Rep. 326 ; 18 Johns. 459 ; 2 Phil. Ev. 83, and note; 2 Stark. Ev. 95, and notes. And as the plaintiff shows no facts, which, independently of his special contract, would have entitled him to recover, he must be confined to his special contract.
   The opinion of the Court was pronounced by

Thompson, J.

The questions submitted, and now to be decided, are,whether the plaintiff’s testimony was correctly excluded ; 1st. when offered in support of the special count of his declaration ; mnd 2dly. when offered in-support of the money counts.

The contract, offered in support of the declaration, is a direct ■promise to pay the notes, and contains no indemnity in terms. This was objected to, and excluded, on account of its variance from the contract declared upon. The plaintiff has correctly -contended, that it is safe and proper to declare on a contract according to its legal effect. And the question of variance, and the question as to the statute of limitations, virtually resolve them-■selvesffnto one 5 and that is, whether the contract, produced in evidence, is an independent and absolute promise, ora mere undertaking to indemnify and save harmless. If it is the latter, no action could be maintained upon it, until the plaintifi suflered damage by reason of the defendant’s failure to perform ; and, in that case, the statute could not commence running against the •claim, till such damage had accrued to the plaintiff. If it is an absolute promise, an action would lie upon it as soon as the time of payment had elapsed, and the statute would then commence running.

The promise is not to pay a note, signed by the plaintiff as surety for the defendant; but it is to pay a specific sum for the plaintiff to a third person, at a specified time ; and a full consideration for this is acknowledged in the writing itself. In reference to the matters now in controversy; we are not able to distinguish this from a promise to pay the same amount directly to the plaintiff.

A case has been supposed by the plaintiff’s counsel: If the , 11 J • 1 , . plaintiff had discharged the notes, by paying half their amount» could he recover the whole of the defendant? Undoubtedly he could. The defendant had received a full consideration for paying the whole which he promised to pay. If he failed to pay, the plaintiff ought to recover the whole amount of him. If the defendant paid and discharged the notes, and was able to do it with half the amount, that was his gain. It would have been a matter of no interest to the plaintiff. Just so the plaintiff’s discharging the notes, by paying half or the whole, was a matter of no interest to the defendant. It would have been otherwise, had the contract been merely an indemnity. Indeed,, we must first decide the contract to be a mere indemnity, or the supposed case can have no legitimate bearing in the argument.

From this construction of the contract, there1 was a variance1, and the testimony was correctly excluded, when offered upon the special count. The same construction, also, shows the same testimony correctly excluded, when offered upon the money counts ; for it matters not whether the plaintiff had paid the notes to Rockwell or not. If the defendant had not paid them, by the time specified, he was liable to this action of the plaintiff. And the ground of this action is the contract of defendant to pay Rockwell j and not the plaintiff’s having paid him, after the defendant’s neglect to fulfil his promise. Against this action, the statute of limitations, which is pleaded in bar, commenced running as soon as the defendant became liable to the suit of the plaintiff upon this contract.

The judgement of the county courtis affirmed;  