Babcock v. Hubbard

Swift, Ch. J. It appears, that Sally Phelps, now Sally Hubbard, Joseph D. Phelps, deceased, Stiles Phelps and Jonathan Phelps, were co-executors of the will of Charles Phelps, deceased : and that Paul Babcock, the plaintiff, was surety for them in their bond to the judge of probate, for the faithful performance of their trust as executors j that the bond has been put in suit, and a recovery had of a large sum of money, which the plaintiff has been compelled to pay; and he brings this action to recover an indemnity. Whenever one man becomes surety for another, for the payment of money, or the performance of any duty, the law implies a promise of indemnity ; and in this case, though the plaintiff might have signed the probate bond before Mrs. Hubbard, and though he might have relied on Joseph D* Phelps for indemnity; yet her subsequent act in executing the bond, knowing him to be the surety, was recognizing and adopting him to be her surety, and was equivalent to a request. When the plaintiff had been compelled to pay the judgment recovered against him and the defendants, for their default, he had an option, either to bring his action on the implied promise to indemnify, and shew the payment of the judgment, as a breach of promise; or to bring his action for the money paid on the execution, as money paid at their request. It has been urged by the defendants, that it appears the rc-covery on the bond was for the default and mismanagement of Stiles Phelps ; that co-executors are not liable for a devastavit committed by each other; that by joining in the bond, they became merely sureties for each other, for their respective do-faults 5 and that, as co-sureties,they are liable only to a writ of contribution to pay their respective proportions, and cannot be liable in a joint action. Hut all the executors, by joining in the bond to the judge of probate, became jointly liable, for the default of each. They were co-obligors ; the plaintiff was surety for them all, and not co-surety : he has, therefore, an action against them, jointly, for indemnity. Gour/n, J. It is not denied, that a surety, at the time of becoming such, may waive all claim to indemnification, from any, or all, of his principals. Hut utdess he does so, the law raises a contract of indemnity in his favour, against all of 1 hem. Here, the defence, to make the utmost of it, is, only. [540] that the plaintiff executed the bond, without any express previous request, by the defendant, Mrs. Hubbard ,* that he did not originally expect to resort to her, for Ids indemnification, as she was not, then, a party to the instrument; ami that the breach of the condition, for which he has been subjected, w as occasioned, not by her, but solely by her co-executor, Stiles Phelps. But these facts furnish no-legal answer to the plaintiff’s demand* An actual request, by her, was certainly not necessary, to constitute the plaintiff her surety. The law required her to have one ; and by becoming herself a party to the bond, as principal, she recognized and accepted Mm, in the character of surety, for herself : or, rather, from the relation, in which the plaintiff stood to the principals in the bond, he became, by necessary legal operation, surety, as well for her, as for her co-executors. And if she only had been in default, he would, unquestionably, have been liable for it. What is meant, by the plaintiff’s not originally expecting to be indemnified, by the defendant, Mrs. Hubbard, is explained by the evidence, which states his acknowledgment of the fact. He did not, at the time, reflect, or did not know, that she wras to become a party to the same bond. But there is nothing in that acknowledgment, from which it can possibly be inferred, that he intended to decline his legal claim to indemnification, against any of those, to whom his joining in the bond would place him in the actual relation of surety. And Mrs. Hubbard, by afterwards executing the same bond, as a principal, established the relation of principal and surety, between herself and him. The case is similar, in principle, to that of l.’s becoming surety for a mercantile house, in which B. is a dormant partner — -in which case, it cannot be doubted, that B. would stand in the relation of a principal to ⅛3., and be, of course, a party to the implied contract of indemnity. But it is urged, that, as the defendant, Mrs. Hubbard, has been personally guilty of no misconduct, or default, as exec-uirix : she is not bound to indemnify the plaintiff: for it is id. Cmt when one executor is liable, upon a probate bond, \hr fh’faults of Ms co-cxecutors, his liability is only that r?' :t sweiy or guarantee; and that Mrs. Hubbard is, tlicrc-iore, so far as regards the ueiault oi Stiles Phelps, but a co-surety with the plaintiff. If this were so, she would be [541] bound, it is true, only to contribute a proportion of the amount, which the plaintiff has been compelled to pay, instead of being liable, as a principal, to reimburse the whole. But the conclusion is incorrect: for though the liability of each u of the executors, as parties to the bond, may, as between themselves, resemble that of a surety, for his principals ; yet, as regards the plaintiff, who is, to every intent, a mere surety, they must clearly be considered, as joint principals. For principals in an obligation, as distinguished from sureties, are those of the obligors, the performance of whose duty the obligation is given to secure. In this view of the subject, Mrs. Hubbard is to be regarded, for the purpose of the present question, as one of several joint debtors; as against whom, in favour of a surety, the default of one, is the default of all — as the request of one, in procuring a surety, is the request of all. There is, therefore, no foundation for the defence. The other Judges were of the same opinion. New trial not to he granted.