Field v. Hamilton

[37] The opinion of the court was delivered by Wheeler, J. The defendant is overpaid for his oxen, and therefore has money in his hands that does not belong to himself. By virtue of the agreement between the plaintiff and McDuffie, as between .them, it was the duty of McDuffie to pay for the oxen, and as he has not overpaid, the excess does not belong to him. By virtue of the same agreement, the plaintiff was left to stand as a surety merely for McDuffie to the defendant on that debt, and when he paid the debt he became entitled, by subrogation, to all the securities and avails of securities which the defendant had, or after-wards received, on account of the debt. 1 Story Eq. § 499; Miller v. Sawyer, 30 Vt. 412. The defendant had the note of McDuffie as such security and afterwards received the sum of eighty-five dollars as avails of the note, and when 'he received this money, it belonged to the plaintiff. What was said and done by the plaintiff and McDuffie about inducing the defendant to accept the note of McDuffie in payment for the oxen, can have no effect upon the rights of these parties, for the defendant was not so induced, and on the contrary required payment of the plaintiff. Judgment affirmed.