
    
      Jesse Lapham vs. Jonathan F. Barrett.
    
    Acknowledgment of “value received” in a contract to indemnify another for paying a note, is good evidence of consideration.
    And such payment, by one who signed the note as security, will raise a liability against such promisor.
    This was an action of assumpsit, and was tried in the County Court at the April term, 1827, on the general issue. The declaration stated, in substance, that on the 29th November, 1823, at Danby, in consideration that the plaintiff had before that time, signed a certain promissory note, for ‡300, bearing date Nov. 22, 1822, payable to one Joseph Burr, or order, which had been signed off the day of its date by Bradford Barns and William Mitt, he the defendant promised the plaintiff to provide for the payment thereof according to its tenor, ánd to indemnify the plaintiff for any loss or damage which might accrue to him by reason of signing said note ; and that in case the plaintiff should pay said note, he would, on request, pay to the plaintiff, the sum so paid by him. There was an a-verment that the defendant had not provided for the payment of said note, and had failed to indemnify the plaintiff, in the premises; and that afterwards on the 15th July, 1824, the plaintiff had been obliged to pay the same, and that the defendant had refused to repay said sum of money, though often requested. The declaration also contained counts for money had and received, for money lent and advanced, and for money paid, laid out, and expended.
    Upon the trial of the cause, the papers, of which copies follow, were offered in evidence on the part of the plaintiff, and their execution was admitted by the defendant, viz :
    
      “Manhy, JYov. 22, 1822.
    “ We, for value received, promise to pay Joseph Burr, or order, “ the sum of three hundred dollars in ninety days from date with “ use. BRADFORD BaRNS,
    William Hitt,
    Jesse Lapham.”
    Endorsed, “1823, Feby. 24. Received enclosed in a letter “ from Bradford Barns five dollars, as interest. J. Burr.”
    Also the following .
    
      “JYew-YorJc, 29th Nov. 1823.
    “This may certify that I, for value received, agree that I will “see paid and discharged a certain note, dated in the year 1822, “ signed by Bradford Barns and William Mitt, and last spring or “ summer, undersigned by Jesse Lapham; said note given running to “/urepAjBürTjofManchesterin Vermont; sum ofsaidnoteis three “hundred dollars. It is understood that I am to bear the said Jesse “ Lapham harmless from said note ; and if the said Jesse shall pay “ the said note, in that case, I promise and agree to pay the same “ to said Jesse Lapham, on demand. JONATHAN F. Barrett.”
    
      The pkintiff also offered the written evidence of Joseph' Burr, which was assented to by the defendant, and of which a copy follows:
    “I, Joseph Burr, do testify and say, that on or about the 22d “Nov. 1822,1 loaned to Bradford Barns three hundred dollars, on, “ a note against said Barns and William, Hitt, payable in ninety “ days, that in the month of May, 1823, having become dissatisfied “with the security, I called on Mr. Barns, and informed him that I' “ should sue the xiote, unless he gave me additional security. He “offered and procured Jesse Lapham to sign the note; that in June “1824, Jesse Lapham,by one ofhis brothers,proposed to assume “ the debt, by giving a note against'himself and two of his brothers. “ I accepted the offer and gave to Lapham the note against Bams, “Hitt and Lapham. It was agreed and understood that the last “mentioned note should be in payment and satisfaction of the for-' “ mer, and was so received by me.’*
    Question by plaintiff. “Was any thing said, when you were at “ Danby to secure the debt, respecting the relation in which Barns “ and Hitt stood to each other on that note ?”
    Answer. “I have no recollection there was.*’
    Question by defendant. “Could you, at the time when you - “ called at Danby to secure the demand, have secured it on the “ personal property of Barns ?”
    Answer. “I presume I could.” Joseph Buhe.”
    The plaintiff having here closed, the defendant moved that he become nonsuit. A verdict was however taken for the plaintiff for the amount paid by the said Lapham, and interest, under a rule, that if the Supreme Court, on argument, should consider the above evidence sufficient in law to support the plaintiff’s declaration, the verdict was to stand, and a judgment to be entered by the said Supreme Court for the plaintiff’on the said verdict for the sum therein mentioned, and interest on the same; but should said court, on the other hand, consider the above evidence insufficient in law'to support said declaration, then a nonsuit was tobe entered.
    
      Barrett and Jliken, in support of the verdict, contended, That, if Barns and Hitt were joint principals, as between themselves, on the Burmote, there can be no doubt in the case — That among joint principles, the request of one means the request of all.— 
      5 Johns, 176 — That the payment- to Burr\s& good one. — 2 Esp. R. 571. — 11 Johns. R. '518.
    It is contended that it is immaterial as to Lapham whether Rams and Hitt were joint principals or not between themselves. ' Barns and Hitt held themselves out to the world on negotiable paper as joint principals, and hence are bound as such to all who shall act and contract rights, relying upon this relation, and not apprised of a different relation. These propositions, it is believed, are well sustained. The following authorities may illustrate them. 2 Starkie, 31. — 2 Esp. 637. — 1 Camp. 245. — 4 Id. 215. — 9 Mass. 59, — 6 Id. 429. The doctrine for which we contend does no injustice to Hitt. But the doctrine for which the defendant Contends does injustice to Lapham. The case of Earle vs. P art- , ridge et al. 8 T. R. 308, sustains this action, and is not oppo- " sed by the case of Elmendorph vs. Tappen, 5 Johns. 176.
    The contract of Barrett is prima facie good. The words “ value received” import a consideration. — 3 Johns. 484. — 1 D. Chip. 340. — 1 Caine’s R. 286. — 7 Johns. 321. Though the consideration is general, yet a particular one maybe averred andprov-ed.-^-l Phil. Ev. 424. — Starlde, 1004. The fact ef request is for the jury >to find, and this may be implied. — 1 Saund. -264, note 1. — 10 Johns. 243. — 14 Id. 188.
    At all events, the evidence supports the money counts. It Is evidence of money received by Barrett to the use of Lapham.— 3 Johns. 492. But it is not necessary to show the actual receipt • of the money. — Doug. 132. — L. Ray. 1007. — 2 Johns. 235. 2 Burr. 1011. It is evidence of money paid. By the agreement of. Barrett, it became his debt to pay, and Lapham paid it. There can be no objection to a recovery on the general counts, provided the evidence is .sufficient, on account of the special contract. — B. yV. P. 139, 140. — 5 Mass. 391. — Doug. 628.-2 Burr. 1011.
    ' Hodges, for the defendant. It is contended, that the considerations averred in the special Counts, are not only unsupported, but disproved by the testimony set forth in the casé.' Although, where money has been received for another’s benefit, and in'similar eases, a request may be presumed, it doeshot follow that it may be presumed to form the consideration of a special- contract, where the party has received no benefit. That a misde-scription of. the consideration is fatal, vide Hoft vs. Dixon, quoted in Selw. JY.P. 118. — 1 Camp. JV. P. Cases, 361, Symon'ds vs. Carr.
    
    The money-counts are equally unsupported by the casé. No consideration is shewn to which the plaintiff may resort on the failure of his special counts. The words “and if the said Jesse ■ “ Lapham shall pay the said note,” import no consideration, but merely describe the condition or contingency on which the contract depends. That payment was of no benefit to Barrett, nor detriment to Lapham, being merely the performance of a prior obligation. However Lapham might have evaded it, or whatever time he might have given to Barns and Hitt, nothing of the kind appears, or forms a part of the contract. The money originally loaned, not at the request of Barrett, nor for his benefit, cannot, by means of this void promise, be made the evidence of • money had, &c.
    “Value received,” though a sufficient description of the consideration in contracts regulated by the law merchant, forms no evidence of one in other parol contracts, where a special consid- . eration must be avered and proved accordingly. How could a jury assess damages upon these words, and what evidence do they afford of the amount of the consideration? A merely nominal sum might be sufficient foundation for such a contract. Can it be supposed that Lapham gave Barrett three hundred dollars to indemnify him, Lapham, against the possible payment of a like surn to Burr*} — JV. Y. Dig. 37, JVo. 4: 150, JVo. 59. — i Chit. Plead. 295.— Chit. onBilh, 11-62. — 2 Aik. 60, Barney vs. Bliss. The specification of the plaintiff confines him to money paid to the defendant, or money paid to Joseph Burr for the bénefit, and not merely at the request of defendant. Neither ol these are shewn. But if these should be esteemed good considerations, still it is insisted that, the contract being open, the plaintiff cannot resort to the, money-count to recover their amount. In a declaration upon .this contract, describing it correctly, the damages might be less than the consideration; and the plaintiff will not be.allowed to recover the latter, and disregard the contract, which affords the proper measure of damages. Neither could the judgment in this suit be pleaded in bar to a proper action on this contract — 1 Chit. PI. 342. — Selw.N. P. 81. — 1 T R. 133, Tower vs. Barrett. — 1 JV. R. 351, Cook vs. Munstone. — 2 'East, 145, Hull vs. Heighiman. — 1 Doug. 23, Weston vs. Downes.
    
   Turnee, J.

delivered the opinion of the court. It is in evidence that Lapham signed the note to Burr only as security. There is no evidence that Burr had ever made any demand of him to pay it; and for aught that appears, it might have been paid by Barns, the principal, and who was responsible for that sum, but for the interference of the defendant. How, after Lapham had signed the note, the defendant became interested to see it paid, does not ¡precisely .appear. But by his contract to Lapham, a contract ■as-clear, and explicit in its terms as language could make it, he “agrees,'to see this note paid and discharged,” and states as a /Consideration, that he makes this agreement “for value received.” ■To these latter word s ho other meaning canbe attached,than an admis :.sion that he had the funds in his hands for the payment of the note. 'The other clause of the contract, that “it is understood I am to bear the-said Jesse Lapham harmless from the said note,” amounts to an admission pf the same thing. The contract then goes on to state, “and'if the said Jesse shall pay said note, in that case I promise, and agree to pay the same to said Jesse Lapham on demand -and it-is admitted that Lapham did pay it.

■It is impossible to perceive on what good ground the defendant .can now exonerate himself from his obligation to save ilLapham harmless; in other words, to replace the money Lapham had paid by his request. The defendant contends that this agreement mustbe considered as gratuitous, because the words “value received” import a consideration only in contracts regulated by the law merchant, but notin other parol contracts. In order to support a position which divests these words of all meaning, the distinction contended for should be established by the authority of gome decided case. No such case is shown. On the contrary, the Supreme Court of this state have uniformly held, that the words “value, received” import a consideration in notes, given for specific articles, (D. Chipman, 345) and these instruments are unknown to the law merchant. So in New-York, 7 John. 321, and sn 3 John. 384, it was held that the words “value received” was sufficient evidence of consideration, even in a deed.

Barrett and Aiken, for plaintiff,

Hodges, toy: defendant.

If, therefore, these words are so held in this case, no difficulty can arise from tire objection, that the defendant’s promise went merely to relieve the plaintiff from the performance of a prior obligation ; because the legal construction of the contract would then be, that the defendant had in his hands the fund out of which the note was to be paid; and if so, it is immaterial in what relation Lap-ham stood to the note. Nor is any weight perceived in the argument, which would require the statement of the specific consider-1 ation in this contract, from the alleged difficulty of assessing damages on the words “value received.” Words are to be construed, and the extent of their meaning determined, by the subject matter to which they are applied. Where the defendant agrees to indemnify Lapham for paying the note, “for value received,” the amount of the value he admits to have received for this purpose is to be measured by the amount of the note.

The Court perceives nothing in this case to distinguish it from the .ordinary cases of money paid on another’s request, and no reason, therefore, why the amount paid should not be recovered under the general counts. It is not necessary, therefore, to examine thé objections to the special counts. Judgment must be rendered oh the verdict.  