Shaeffer v. Clendenin

Mr. Justice Sterrett

delivered the opinion of the court October 4th 1882.

The parties to this suit were accommodation indorsers of a note made by Ephraim Cornman for $1,010.78. After it had been reduced by him to $524.30, they contributed equally to the payment of that balance and lifted the note. About the time it was indorsed, Mrs. Cornman, wife of the maker, united with her husband in assigning to the defendant Clendenin $1,200 of a judgment which she then held against her husband. There was a conflict of testimony as to whether the assignment was intended to indemnify .both sureties or only the one to whom it was made. Cornman and his wife both testified it was for the ■ benefit of both sureties, but Clendenin swore that it was for the benefit of himself alone. The question of fact thus raised was submitted to the jury, and they found that the- judgment was assigned for the benefit of Clendenin alone, to secure him against loss as indorsor of the Cornman note. After the note was lifted, Clendenin demanded and received from the assigned estate of Cornman a dividend of $247.75, on the portion of the judgment assigned to him as above stated. This suit was then brought by Shaeffer, his co-surety, for half of that sum, and on the trial a verdict was taken for the' amount claimed, subject to the opinion of the court on the question of law raised by the points presented by both parties. Judgment was afterward entered for the defendant non obstante veredicto; and thus arises the question involved in this contention.

The relation of co-sureties is one of mutual trust and confidence, and from it springs their liabilty to contribute equally to the payment of their principal’s debt, as well as their right to equally participate in any indemnity that may be obtained from f him, directly or indirectly, by either or all of them. The princi- ; pal is equally bound to indemnify all his sureties alike, and each ¡ of them has an equal and just claim upon him for that purpose. ! In every point of view it would be grossly un just and inequitable ! for one surety without the consent of the others to derive any ; exclusive benefit from the act of their principal in providing ! any kind of indemnity which he might and ought to have pro- 1 vided for the common benefit of all. This principle is clearly ■ ruled in Agnew v. Bell, 4 Watts 31. It may well be, that where a stranger to the transaction, gratuitously and of his own accord, reimburses or indemnifies one of several sureties, the others have no equitable claim on the gratuity thus bestowed for his individual benefit without the aid or procurement of their principal ; but that is not the case before us. Cornman proposed to obtain and did procure from his wife the security that was assigned to the defendant. If the latter had collected the dividend on the judgment before the note was paid he would have been bound to apply the amount so received to the note, and thus it would have inured-to the benefit of both sureties, lie was liable to his wife to the extent that the proceeds of her judgment w’ere used in paying his debt. In the absence of anything to show that the portion of the judgment assigned was intended ; as a mere gratuity, we cannot presume it was a gift. On the ' contrary, the presumption is that he was accountable to her for i • so much at least of her security as, at his request, was applied ' to his use. If Cornman had borrowed $24-7.75 from his wife, or from a stranger, to reimburse Clendenin for his loss, the transaction, in principle, would have been precisely the same. He satisfied part of his indebtedness to Clendenin, and at the same time incurred a corresponding liability to his wife. Practically- the indemnity in which plaintiff claims to participate was furnished to one of the sureties by their principal, and just to that extent was the ability of the latter to reimburse the other surety lessened.

The plaintiff was entitled to an unqualified affirmance of his point.

Judgment reversed, and judgment is now entered on the verdict in favor of the plaintiff for one hundred and twenty-seven dollars and fifty-six cents, with interest from Oct. 6th 1881,-the date of the verdict.