Bender ex rel. Mueller v. George

Mr. Justice Trunkey delivered the opinion of the court, November 17th 1879. Bender gave Tochterman a lease for the term of four years and eight months from the 1st of August 1872, and Meyer & Co. and John M. Mueller were sureties for performance of the lessee’s covenants. Tochterman, August 3d 1873', assigned his term to Campbell, who soon after assigned the same to Anderson, for whom George became security, as bail absolute, for payment of the rent and performance of the covenants mentioned in the agreement. On the [39] face of the writings, George was bound to Bender and his deed was admissible in evidence. The testimony which was received must be taken as establishing every fact, which the jury would have been warranted in finding had it been submitted. And offered testimony, erroneously rejected, will be considered as if received, in determining if the nonsuit was rightly ordered. Then, when George executed the deed, he knew Anderson was in the house, and that he alone was going bail for payment of the rent. Tochterman had failed, and his sureties, who had taken charge of the premises, made the contract with Anderson, procured the assignment of the lease to him, gave him possession, and he got the paper signed by George which he delivered to them. In this transaction, Bright, a member of the firm of Meyer & Co., was the active agent for the sureties. Upon these facts, shown by written and oral evidence, it is clear that the plaintiff was entitled to recover such sum as he had been compelled to pay by the default of Anderson. For the time that Anderson held the term as assignee of the lease, by privity of estate, not of contract, he was directly responsible to the lessor for the performance of the covenants, although Tochterman and his sureties were not discharged: Borland’s Appeal, 16 P. F. Smith 470; Negley v. Morgan, 10 Wright 281. Upon the latter having been made to pay, they had right to all the remedies. which the lessor had against Anderson and George. Where two persons are equally liable to the creditor, if as between themselves, there is a superior obligation resting on one to pay the debt, the other, after paying it, may use the creditor’s security to obtain reimbursement. The doctrine of subrogation does not depend on privity, nor is it confined to cases of strict suretyship. It is a mode which equity adopts to compel the ultimate discharge of the debt by him who, in good conscience, ought to pay it, and relieve him whom none but the creditor could ask to pay: McCormick’s Adm’r. v. Irwin, 11 Casey 111. In some cases, a conflict of equities may arise, as between the former and latter sureties, but not here. In consideration of the assignment, Anderson agreed with the sureties of the original lessee to pay the rent, and gave security for his performance. In strictness, the legal liability of himself and his surety was to the lessor; in equity and good conscience they were bound to save harmless those with whom Anderson actually contracted. The principal creditor was entitled to the full benefit of that security, even if he did not know of its existence till sometime after it was given: Kramer & Rahm’s Appeal, 1 Wright 71. Had he released it, the prior sureties to himself would have been discharged. Pie could not free George and hold them. The obligation of George was to pay on Anderson’s default; but Bender chose to make Mueller pay, and, by familiar principles in equity, the latter is allowed [40] to use the creditor’s name for recovery against him who ought to have paid the debt. As already stated, the deed set forth in the first offer of testimony was admissible, and we also think the fourth offer should have been received. In view of the foreshadowed defence, the fourth offer was pertinent and corroborative of the plaintiff’s other testimony. Judgment reversed, and procedendo awarded.