
    William Whitaker versus Rodney Smith et al.
    
    In an action upon a promissory note containing a condition, that it shall be void il the defendant shall indemnify the plaintiff against a note signed by him w ith the defendant, the declaration ought to set forth the condition.
    
      It seems that there should also bo an averment that the plaintiff has been damnified.
    Where A gave a note as surety with B, to indemnify C against a note signed by B and C, and B afterwards paid this last-mentioned note with money borrowed for that purpose upon another note signed by B and C, it was held, that A was discharged.
    Evidence that B was insolvent, and that this money was borrowed on the credit of C, and was repaid by him, has no tendency to show that C was any thing more thar a surety, or that B paid die note with die money of C, and as his agent.
    This was assumpsit upon a promissory note for 200 dollars dated January 14, 1823, given by Norman Smith and Rodney Smith to the plaintiff. To the note was subjoined a condition, stating that it should be void if Norman should save the plaintiff harmless from all damage and expense, by reason oí a note signed by Norman and the plaintiff to one Ripley foi 200 dollars. The condition was not set forth in the declara tian. The action was tried before Putnam J., upon the general issue.
    The defendants proved that Norman paid to Ripley’s ex ecutor, the sum due on the note to Ripley, and that note was produced with an indorsement upon it, that it had been paid by the plaintiff’s signing a note with Norman, to Aaron Brooks junior, for 225 dollars. The plaintiff then proved by one Bryant, that this indorsement was in the handwriting of Norman ; and he offered to prove, that Norman had acknowledged that the money paid to the executor of Ripley was borrowed of Brooks for that purpose, upon the credit and responsibility of the plaintiff, as well as of Norman ; that the note g'ven to Brooks for the money so borrowed was paid bj the plaintiff; and that the circumstances of Norman were such, that he could not have borrowed the money on his own name and credit. This evidence was rejected, on the ground that the note to Brooks was not produced by the plaintiff. And it was stated by the counsel for the defendant, and not denied by the counsel on the other side, that the note was in the hands of Brooks at the last Court of Common Pleas held in the county in which the action was brought.
    
      Sept. 30th.
    The jury were instructed, that the plaintiff having proved the note declared on, the condition upon which it was given was a matter of defence, and that the burden was upon the defendants to prove that they had paid the note to Ripley and saved the plaintiff harmless ; that the testimony being that Norman paid the money, the burden shifted upon the plaintiff to prove that it was the money of the plaintiff and that Norman acted as his agent; that if Norman procured the money' of Brooks by becoming principal, with the plaintiff as surety, in the note given to Brooks, the money would be the property of Norman, with which he might discharge the note to Ripley ; that if it was borrowed, as well for the plaintiff as for Norman, upon their joint and several note, and Norman took the whole of it, the law would raise a promise on his part to pay one half of it to the plaintiff; and inasmuch as the money was delivered to Norman and by him paid over to Ripley’s executor, the jury might consider the payment as made by Norman’s money, by reason of his being accountable to the plaintiff for so much money had and received above his part borrowed upon the note to Brooks. The jury were also instructed, that if Norman was acting for the plaintiff and paying the note to Ripley with the plaintiff’s money, they might find a verdict for the plaintiff.
    The jury found a verdict for the defendants, and the plaintiff moved for a new trial.
    
      Bigelow and Brooks, for the plaintiff,
    said that the condition was matter of defence and needed not to be set forth in the declaration. Hotham v. East India Co. 1 T. R. 645; Stearns v. Barrett, 1 Pick. 443; 1 Chit. Pl. 228. They also argued, that material evidence on the part of the plaintiff was improperly rejected ; and further, that if the money was borrowed of Brooks as well for the plaintiff as for Norman half of it was the plaintiff’s money, and so the instruction to the jury on this point was incorrect.
    
      April term 1827, at Greenfield.
    
    
      Bates and C. A. Dewey, contra,
    cited as to the declaration Penny v. Porter, 2 East, 2; White v. Wilson, 2 Bos. & Pul. 119; and to the point that the transaction with Brooks was a new contract between the plaintiff and Norman, the principal in the note declared on, which discharged Rodney the surety, they cited Rees v. Berrington, 2 Ves. jun. 543; Rathbone v Warren, 10 Johns. R. 587; Elmendorph v. Tappen, 5 Johns. R. 176.
   The opinion of the Court was read as drawn up by

Parker C. J.

It strikes us, that as the declaration is uPon a promissory note in common form, and the evidence offered to support it, is a note with a condition, this is a fatal variance.* The defendant, by such a declaration, has no notice of the contract which he is charged with having violated, and has no means of pleading a performance of the condition, or of otherwise showing that the plaintiff is not entitled to recover, until the paper is produced on trial. The case of a bond, which undoubtedly may be declared on without setting forth the condition, is different, for the defendant is entitled to oyer, both of the bond and the condition; but there is no such right in relation to simple contracts, and this shows the necessity of setting out the whole. And we doubt much, whether, as the true nature of this note, with the condition, is a promise to indemnify, the plaintiff ought not, after setting forth the whole, to have averred that he had been damnified. But be this as it may, the defendant was entitled to know the whole of the contract on which he was sued, in order that he might know how to defend himself.

But as to the merits of the contract and the evidence ii. the case, the note sued was to be void if the plaintiff were saved harmless from a note of like sum, which with Norman S. he had given to Ripley. The note to Ripley was paid by Norman ; and this would discharge this contract, unless it were paid by money of the plaintiff through Norman. It appears that the money was borrowed of Brooks on a note of the plaintiff and Norman ; but this is an entire new contract, not within the scope of the promise of Rodney, for he did not undertake to indemnify the plaintiff against any thing but the note to Ripley. Rodney was discharged by this transaction, for he, being merely a surety, cannot be held beyond his engagement. There is no evidence that he agreed to any thing beyond his written contract. Without doubt, the question was properly left to the jury, whether the money paid to Ripley’s executor was the money of the plaintiff or of Norman, and the evidence warrants the verdict, for it ought to be presumed, under the circumstances, that in the note to Brooks, the principal was Norman, and the plaintiff only a surety.

The rejected evidence would not have altered the state ot the case, for proving that the money was borrowed on th<? credit of the plaintiff, and that the plaintiff repaid it, ana that Norman was insolvent, would not tend to show that the plaintiff was any thing more than a surety, or that the money was not borrowed by Norman. The question really is, whether Rodney is bound by this new contract. He might have very well been willing to indemnify the plaintiff against the note to Ripley, and unwilling to be responsible upon a note subsequently given, when the circumstances .of Norman might have changed, or his means of obtaining security diminished.

We think the verdict is right, and judgment must be entered thereon. 
      
       Where a contract is conditional it will be a fatal misdescription, to state it as an absolute one. 1 Chitty on PI. (6th Amer. ed.) 338.
     
      
       See 1 Chitty on PI. (6th Amer. ed.) 465. But the courts or judges, bj analogy to the doctrine of oyer, will in most cases order, that the party have an inspection and copy of the instrument. See Tidd, (9th ed.) 589; Howe's Pract. 423; 2 Stark. Ev. (5th Amer. ed.) 411 et seq.
      
     