Thomas Chamberlain vs. W. Hopps and W. Hopps, Jr., 8 Vt. 94

The opinion of the court was delivered by Phelps, J. It is admitted that the plaintiff must prove a joint contract in order to recover. The note in question when delivered to the plaintiff was the note of Hopps Jr. only. It was subsequently delivered to him for the purpose of obtaining the signature of the other defendant. It was signed by him, but never re-delivered to the plaintiff. Did it then ever take effect, as between these p4vties, as the joint note of the two defendants. We think not.

Although upon its face the-joint note of the two, yet never having been delivered after it assumed that shape, it never took effect as a joint contract. Indeed it may well be doubted, whether it even took effect as the several contract of Hopps Jr. If we consider it a part of the original contract that the notes were to be signed by the other defendant then it was an unfinished and imperfect security in the hands of the plaintiff in the first instance, and when delivered to the defendant was wholly inopera--tive.

If3then it was never delivered in the shape and termsc&ntem-{ plated by the original contract, it never had any perfect obligation; If we consider it as perfect in the first instance, as signed only by Hopps Jr. and as being all the contract required,- it- would be difficult to discover upon what ground the liability of the other de-' fendant could rest; unless upon the ground of an actual delivery of the notes thus signed by both, which might indeed import a-consideration, and thus be evidence of a perfect obligation.

It is impossible to. treat Hopps Jr. as holding this not’e, thus executed by both defendants, as the agent of the plaintiff, without confounding all distinctions. A principal in a contract can not be in the nature of things the agent of the other party in respect to that contract. The contract may indeed constitute him an agent' for some collateral purpose, but the essential requisite of a delivery of such a security is not to be evaded by sucha supposition.

We consider the undertaking of Hopps Jr. to be substantially, to procure and deliver a note of a certain description, and this as a part of the original contract for the land. His refusal to deliver the note was, in effect, a refusal to complete that' contract. He may perhaps be liable for such refusal, or perhaps, as between him- and the plaintiff, he may be liable in trover for the note. But whatever may be the case as between them, the plaintiff can have-no remedy against Hopps Sen. Further, Hopps the elder was a surety merely for his son.

How then could he be held, if his principal refused to deliver the joint security ? And if made liable, how can he have a remedy against his principal? If the signature of the lather was required by the original contract, the son could not be required to indemnify him unless he chose to bind: him by delivering the security when it was perfected. If it was not required by the original contract,, then the procuring the signature of the father was a mere voluntary courtesy on the part of the son which he was not bound to perform.

If then he chose not to make the father holden, how can it be said that the father is at all events liable, and the son bound to indemnify him ? We are of opinion that the evidence was rightly.rejected, and that judgment must be affirmed. ■