Gibson v. Rix

Kellogg, J. The statement, in the bill of exceptions, of the facts shown to the satisfaction of the county court on the trial, is in the nature of a special verdict or case, upon which judgment was rendered in that court., and this court is called upon to revise the case only in reference to the conclusions of law which are applicable to the facts so found. It is expressly found by the county court that the notes of the persons summoned as the trustees of Levi Rix, the defendant’s principal, which were taken by the intestate under an agreement between him and said Levi, were received and accepted by the intestate in payment of the three notes, including the note in suit, which were executed to him by the said Levi and the defendant. This is equivalent to an agreement upon good consideration for the substitution of new debtors, and when the notes of the persons summoned as trustees were delivered to the intestate, and accepted by him, it became an accord' executed, and would have the effect to release and extinguish the liability of Levi Rix and the defendant on the three notes executed by them to the intestate. The defendant, bearing the relation of surety on these notes, and his liability being but an accessory to that of his principal, comes within the application of the rule, well established both at law and in equity, that a discharge to the principal is a discharge to the surety; (Byles on Bills, p. 189.) The note in suit not having been transferred by the intestate until after it became due, it must be treated as being subject, while in the [827] hands of William W. Gibson, to whom it was so transferred by the intestate, as well as in the hands of the present holder, for whose benefit this suit is prosecuted in the name and by the consent of the plaintiff as the personal representative of the intestate, to the same equities or defences which would attach to it if it was held in the right of the intestate, and the suit was prosecuted for the benefit of his estate. But it is contended on the part of the plaintiff that Levi Rix having presented a claim to. the commissioners on the estate of the intestate for the payments made by him on the three notes, and the amount of those payments having been allowed to him as a claim against that estate, those payments are merged in that allowance, and should be treated as having been waived. R was undoubtedly competent for Levi Rix, with the consent of the intestate in his lifetime, or of his administratrix after his decease, to retract any payment which he made on the note in suit, and thereby to restore the obligation of the note, so far as he was concerned individually ; but after the liability of the defendant upon this note was released and discharged, it could only be restored by his own agreement or consent, and could not be revived or in any manner affected by any act of Levi Rix, his principal, to which he was not a party or privy. The presenting by Levi Rix before the commissioners on the estate of the intestate, of his claim against that estate, and the allowance of that claim by the commissioners as stated in the bill of exceptions, would therefore, whatever might be its effect as against him, be entitled to no effect whatever as against the defendant, unless accompanied by proof that such presentation and allowance was made with the privity and consent of the defendant. No such fact appears in the case, nor does it appear that the return by the intestate to Levi Rix of one of the notes which the intestate took from him in payment as above mentioned, was with the consent or knowledge of the defendant. If the liability of the defendant on the note in suit had not been satisfied and discharged, he might well have complained of the giving up by the intestate to his principal of any security which the intestate held for the payment of that note, if it was done without his consent, for it is a doctrine of equity that the surety is entitled to the benefit of all the [828] securities and remedies which the creditor may hold against the principal. We consider that, upon the facts found by the county court, the defendant was entitled to a judgment in his favor, and the examination of other questions raised on the argument accord* ingly becomes unnecessary. The judgment of the county court is reversed, and judgment rendered in favor of the defendant.