Pinckney v. Pomeroy

By the Court, Mullin, J. The plaintiff, to enable Lathrop to pay for the horse purchased of Carpenter, signed the note of Lathrop, as surety, for $95, payable in one year. Before this note was signed, and as an inducement for the plaintiff to sign it as surety, Lathrop promised to give him a note signed by the defendent as security for his (the plaintiff’s) signing the Carpenter note. And in a few days after the latter note was signed, the parties met, and the [465] note in suit was drawn, signed and delivered to the plaintiff, in pursuance of the arrangement aforesaid. When the Carpenter note became due, the money to pay it was borrowed of Amidon^ on a note of the plaintiff and Lathrop, and $95 of the money so received was paid to Carpenter, and the balance was collected.out of Lathrop’s property. The plaintiff paid Amidon, and brings this suit to recover of the defendant the money so paid. The plaintiff was surety for Lathrop, to Carpenter; the defendant became surety for Lathrop to the plaintiff. Both became liable, without any actual consideration moving to them from any-other person. The defendant’s note was delivered to the plaintiff to indemnify him for such sums as he might pay on the Carpenter note; and until the plaintiff paid, there was no right of recovery against the defendant. The plaintiff has paid the money borrowed to pay Carpenter, and claims to recover the money thus paid, and he is met by the objection that he did not pay the debt which the note in suit was given to secure, but that the note was paid by Lathrop, and that the obligation of the defendant as a surety cannot be extended to the debt to Amidon. That the debt to Carpenter was paid cannot be denied; that it was paid by Lathrop with his own money, is not true. In the note to Amidon, Lathrop was the principal debtor, and the plaintiff was the surety; the money realized was, in theory, his money, and was applied in ex-tinguishment of his debt. Upon the payment of the Carpenter note, it was extinguished, and no right of action existed in favor of the plaintiff, either on the note or for money paid. The same would have been true, had the plaintiff loaned the money to Lathrop.and taken his note for the amount. In either case the Carpenter note would be paid, but the principal had not paid the debt, so as to relieve the surety from the liability which he assumed, as surety. As long as the principal borrowed -money on the credit [466] of. the surety, the debt paid thereby was only paid sub modo; it existed still; as between them it was virtually unpaid. . The defendant’s note was an operative security until the debt for which the plaintiff was liable was paid by the principal — paid not technically, but really. Chapman v. Jenkins, (31 Barb. .164,) decides that, as between Lathrop and the plaintiff, the rights of the latter as surety continued after the original debt was paid, and so long as the money to pay it was realized on paper to which the surety was a party,' In Norton v. Eastman, (4 Greenl. 521,) it was held that a collateral undertaking to‘guaranty the payment of a debt,1' is not discharged by the creditor’s taking a new stipulation from the debtor with an additional security; nor by any other transaction between him and the creditor, so long as • the debt remains unpaid. In Pond v. Clark, (14 Conn. 334,) where a mortgage was given, conditioned to save the mortgagee harmless from his indorsement of specified notes, and such notes, as they respectively became due, were renewed by the substitution of other notes or drafts, having different sums on them, but the obligation of the original indorsement by the mortgagee was preserved through the whole series of renewals and substitutions, without any new credit being given, and the substituted paper was ultimately paid by him, the debt thus paid being the same debt for thé security of which he made the original indorsement; it was held the plaintiff was entitled to enforce the mortgage, to collect the amount thus paid. If payment by money raised on the responsibility of th.e surety does not deprive the latter of his rights, as to any security given him for the original debt, is .there any reason why a different rule should prevail in favor of another surety to the first surety for such original debt ? The latter pledges his property or his credit in order to [467] secure the first surety, the payment of the debt, if he shall be obliged, by reason of the principal’s default, to pay it; and although the liability of the surety is sometimes construed strietissimi juris, yet the law is not so absurd as to sacrifice, totally, the substance of the arrangement to mere form—to declare a debt paid, when the money to pay it is borrowed on the credit of the first surety. [Oswego General Term, July 8, 1862. Allen, Mullin, Morgan and Bacon, Justices.] I am unable to perceive, in the case, any evidence that the plaintiff has given time to the principal, so as to discharge the defendant. The debt, a.s to which time is given within the meaning of the rule under which the objection-is made, must be the debt for which the surety is prosecuted. The plaintiff was not in a situation to give time, until he had paid the debt and had thereby a right of action against both the principal and surety. Since he paid the debt there is no pretense that he has given time to Lathrop. Indorsing, from time to time, Lathrop’s paper, to take up prior paper, was not giving or extending time. Uor had the plaintiff at those times, any cause of action against Lathrop, or even a debt on which an extension could be-given. There was a consideration for the defendant’s promise. The plaintiff became surety on the agreement of Lathrop that a note made by the defendant should be given him as security for his signing the note to Carpenter. The defendant, knowing of the arrangement, and to carry it into effect', gave the note in suit. A valid-consideration is thus shown. (Carrol v. Nixon, 4 Watts & Serg. 517.) .1 am in favor of reversing the judgment of the county court, and affirming that of' the justice. Judgment accordingly.