Carpenter v. Minter

Collard, Judge. This case must be reversed. There was no variance in the affidavit for attachment and the petition. The affidavit claimed that $336.60 was the amount justly due the plaintiff. The petition claimed by its allegations the same amount, and the exhibit attached to the petition did not show that a less amount was due. It is true the petition alleged that the attorney fees were to become due on maturity of the note, and the note filed as an exhibit to the petition only allowed attorney fees in ease of suit by the payees; but the surety paid the note on maturity and then brought suit against his principal, the maker. This of course he had the right to do, and his right to sue was on the note itself. The error of the court below was in finding that the surety could only sue for the amount that appeared to be due on the note at the time it was paid by the surety without suit by the payee. This was incorrect. The surety having paid the note was subrogated to all the [372] rights of the payee, -that is to sue on the note and recover the same amount the payee could have recovered by suit. The right of the surety after payment of his principal’s note was not on the implied assumpsit for the amount paid, but to sue on the note itself. The payee by.suit could have recovered the principal and interest and ten per cent attorney fees on the amount. Worsham v. Stevens, 66 -Texas, 89. The surety could by suit on the note recover the same judgment. The note was not extinguished by the surety’s payment. Tutt v. Thornton, 57 Texas, 35; Sheldon on Subrogation, sec. 80. An inspection of the petition and the exhibit does not show that the attorney fees were not due, but that they were due plaintiff below. There was no variance between the petition and the affidavit for attachment. The cause should be reversed. Reversed and remanded. Adopted December 21, 1888.