Olcott vs. Little, 9 N.H. 259 (1838) - Opinion

Olcott vs. Little.

Where a note was signed u W. S., for himself and G. L.,” it was held to be a valid signature of both, where authority was shown to execute the note.

Where one, of two or more joint contractors, is without the state, as appears by the officer’s return, so that no service can be made upon him, judgment may be rendered against such of the joint contractors as are found within the jurisdiction; and such judgment remaining unsatisfied is no bar to a subsequent suit, and judgment against the remaining signer, or signers.

This is an action of assumpsit against the defendant, as surviving promiser of one William Siyfield.

The first count sets forth a note, dated December 12th, 1828, for the sum of $219.20, alleged to have been “ made by the said Little and Siyfield,” and payable to the plaintiff, or order, on demand, with interest.

The second count is quantum meruit, for sawing 200 m feet of pine logs, at the plaintiff’s mills, in Lebanon, for said Little and Siyfield, in the lifetime of the said Siyfield, for which the plaintiff claims the sum of $300.

The third count is for money had and received by said Little and Siyfield, to the amount of $200.00.

The cause was tried here upon the general issue, when the plaintiff offered in evidence, under the first count, a note, of which the following is a copy:

“ Value received of Mills Olcott, we promise to pay him, ‘ or his order, two hundred nineteen dollars twenty cents, on ‘ demand, with interest. William Siyfield,

for himself and George Little.”

12th December, 1828.

$219.20.

To this the defendant objected, as being inadmissible to sustain said first count; but this objection was ¿overruled, and the note was admitted.

The defendant then offered a judgment rendered at the superior court of judicature, Grafton co., May term, 1830, in favor of the said Olcott against the said Slyfield, for damages $237.83, and costs $13.53, upon the same subject matter which is contained in the two first counts of the plaintiff’s declaration in this case.

The suit was commenced against said Slyfield and Little, and returnable at the November term, 1829, of said superior court, and the writ was returned, as to said Little, non est inventus. Said Slyfield died after said judgment was rendered, and before the present suit was commenced.

The defendant, Little, contended that, under these circumstances, no action could be maintained against him upon these two counts; but the court instructed the jury that the former judgment against Slyfield was no bar to the suit against Little.

A general verdict was returned for the plaintiff, for $171.50damages; and the defendant moves that this verdict be set aside, and a new trial granted, for misdirection of the court in point of law.

In the first suit against Slyfield and Little the writ bore date the 4th day of November, 1829, and was returnable the first Tuesday of November, then next. It was entered November term, 1829, when Slyfield appeared by his attorney, Jonathan Smith, and the action was continued, by agreement of parties, and defaulted, May term, 1830, and judgment rendered.

Bell, for the plaintiff.

Bellows, and Bartlett, for the defendant.