
    Bezele Hosford vs. Isaac S. Foote.
    Chittenden
    
      January, 1831.
    On a promise by A to pay, and save B harmless from three notes of less than one hundred dollars each, payable in three successive years, if A fails, andBis obliged to pay as they fall due, B may recover before a justice of the peace, upon each successive payment by him, and one recovery is no bar to the others.
    A memorandum in writing,not signed by the party,is admissible evidence,accompanied with testimony of his concessions,that such memorandum contained the true contract.
    This case was brought up from the county court upon exceptions allowed by the judges. The facts appeared to be these : The plaintiff, in the year 1820, gave three notes to one Johnson Foote, from forty to ninety dollars each ; and, in the year 1823, the plaintiff held a note against the defendant, which he delivered up to the defendant to be cancelled, also sold and delivered him a certain horse; in consideration of which the defendant promised the plaintiff that he would pay, and save the plaintiff harmless from, the said three notes, which said Johnson Foote held against the plaintiff they being payable in three successive years. The defendant failed to pay said notes, or either of them, and the plaintiff was sued, and compelled to pay to Johnson Foote the note first payable; and brought his action against the defendant upon his contract of indemnity, alleging,, as a breach, whai related to that note only, which he had thus been compelled to pay. This action was appealed to the county court. Soon afterwards, the plaintiff was sued upon the note to Johnson 1 1 Foote, which next became payable, and was compelled to pay this also. He then brought his action against the defendant, uPon ^le same contract, alleging, as a breach,what related to said second note only. This action was, also, appealed to the county court,and was the one now under consideration. Both actions being in the same county court together,the plaintiff recovered judgement in the one first commenced. The defendant then insisted,that a justice of the peace could have no jurisdiction of this action; the entire contract,concerning the three notes,exceeding the sum of one hundred dollars. He,also, contended, that no successive actions could be sustained upon this contract; and, therefore, that the final judgement, recovered by the plaintiff in said first action, barred his right of recovery in this action. A further question was, also, raised. The plaintiff, in order to prove the contract, set up in his declaration, offered a memorandum in writing, not signed by any person, accompanied with parol proof, that this memorandum contained the true contract between these parties. The writing was objected to by the defendant, but admitted by the court.
    The written pleadings closed in issues to the Court; and, upon the finding, by the county court, of the foregoing facts, they rendered judgement for the plaintiff. To their decision, upon the several points raised, the defendant excepted.
    The exceptions were now argued by C. Mams, for the defendant, and by H. Men, for the plaintiff.
   Hutchinson, C. J.,

pronounced the opinion of theCourt.— The memorandum in writing, if offered by itself, would not be admissible ; but it was offered in connection with parol evidence of the defendant’s concessions, that it contained the true contract between them. This makes it the same as if the defendant, instead of referring to the writing, had stated over to the witnesses just what is contained in this writing. The writing is presented as a part of their testimony ; and, as such, was correctly admitted. The want of coherence in the dtfferent parts of this writing, is slightly noticed by counsel. There is one expression in the writing, which, standing alone, would show, that the three notes to Johnson Foote were supposed not to exceed eighty three dollars ; yet, taking the whole together, it is clear, that this expression was intended to relate to one of the notes, only ; for, it goes directly on to describe two other notes,as being for fortytwo or forty three dollars each; and, when it plainly speaks of the three notes,it says, “ they are supposed to contain one hundred and sixty five dollars.” Thus understanding the case, we haye no doubt but this testi- " mony was correctly admitted.

The principal question seems to be, whether the action is within the jurisdiction of a justice of the peace. For, if the action was originally before a court that had no jurisdiction over it, the county court could have no appellate jurisdiction to render a judgement in favor of the plaintiff. The amount of the notes, or the consideration of the defendant’s promise, or the sum total of what defendant was to pay, by virtue of his contract, would clearly exceed the jurisdiction <sf a justice of the peace. Is this, then, to be considered as necessarily an entire contract, or virtually three contracts ? By reference to the written memorandum, it appears, that none of these notes had become payable, when the defendant made this contract, though all had become due, when the plaintiff was compelled to pay the one now in controversy. This was, then, virtually a promise by the defendant, that he would pay the first note when it should become due, and another promise with regard to the second, and another with regard to the third. Thi3 contract contains the most perfect analogy to a note for a given sum, payable by three instalments. In such case, certainly an action would lie" upon each failure ; and the jurisdiction would be regulated by the sum to be recovered in each action. And it forms no objection to these several actions, that they are all founded upon one consideration, large enough to support all the promises. The whole consideration and contract being set forth, the assignment of the breach brings one particular instalment, and that only, in controversy s and this as well'in reference to jurisdiction, as to the sum to be recovered.

It is urged, however,that all the notes to Johnson Foote had become due before the plaintiff commenced either of his actions. This does appear; but it also appears,that the plaintiffhadnot been damnified by the subject matter of the present action, when he commenced his first action ; and the plaintiff might well rest easy, till called on for payment. He might well suppose, that the defendant was performing all parts of his undertaking, till otherwise iniormed. Johnson Foote could call upon the plaintiff when he pleased, after the notes were due ; and the plaintiff,upon satisfying that call, had a right to seek his indemnity. If the plaintiff had beca compelled ,to pay all these notes at one time, he ought to have sought his indemnity for the whole in one action ; but otherwise, when he is called upon for each note separately.

H. Allen, for plaintiff.

Chs. Adams, for defendant.

Our decision upon this point disposes of the remaining point also ; for, if the plaintiff has a right to Ms separate actions for his indemnity against the several notes, the judgement in one action can be no bar to another.

The judgement of the county court is affirmed.  