ON MOTION FOR REHEARING. Plaintiff has asked a rehearing in this case principally on the ground that our decision is contrary to Rosencranz v. Swafford Bros., 175 Mo. 518, 533, where the Supreme Court decided that a carrier's lien for freight is not assignable. We do not see how that has any application to the case before us.
The principle governing subrogation is equity while that governing assignment is law. The office and definition of equity is the correction of that wherein the law by reason of its universality is deficient. "Assignment stands on contract," altogether different from equity. "The right of subrogation is an equity that arises out of a condition and does not depend on contract." [Lowenstien v. Insurance Co., 227 Mo. 100, 116, 117.] The condition here is that plaintiff, being fully protected by the security of his lien, voluntarily gave it up and thereby prevented the surety from calling upon equity for aid by way of subrogation. We think plaintiff's criticism of Judge PUTNAM'S view as stated in American Surety Co. v. Lawrenceville Cement Co., 110 F. 717, 722, is not sound.
But aside from the right of subrogation, we have but to return to the rule stated in the foregoing opinion which is closely related to subrogation, in principle, viz., that when one voluntarily surrenders a protection or security for his debt, he ought not to be allowed the unfairness of making it up from a surety who is only secondarily liable.
The motion should be overruled. *Page 153