Flagg v. Locke

Munson, J. The suit is against Blake Locke and Mary Ann Locke, and is based upon a joint and-several note signed by the two. It appears by special verdict that “Mrs. Mary Ann Locke” signed the note as surety. There is nothing in the case to show that this Mrs. Locke is the wife of the other signer. So her signature cannot be treated as a nullity, and the case presented is one of-ordinary suretyship. It is not necessary to consider the argument by which defendants’ counsel sede to distinguish this from the numerous cases in which this court haS held that claims can be allowed [322] in set-off only where the parties are identical. The case of a surety is taken out of these decisions by the force of No. 39, Acts of 1896. It is provided by that act that “a surety on a note or other obligation by indorsement or otherwise, may, in an. action brought against him thereon, set up any defense that the principal might have availed himself of in an action brought against him thereon.” The remedial purpose of this provision requires its application whenever the fact of surety-ship is made to appear, even though the principal and surety are sued together as joint makers. And in the application of this statute everything is to- be regarded as a defense, whether so classed technically or not, which operates to defeat the plaintiff’s recovery. The act of 1896 having been brought to the attention of plaintiff’s counsel, it is suggested that the enactment should not be construed as retrospective, and that, if so construed, it is unconstitutional as impairing the obligation of contracts. We cannot accept this view. The legislature may well be supposed to have intended an application of the statute to causes of action accruing before its passage. It pertains only to the remedy, and in no way impairs the obligation of the contract. It simply enables the surety to effect at law what he could accomplish in equity. A surety can, without payment and before he is sued, proceed in equity against his principal and the creditor, and procure an adjustment between them for his own protection. In other words, this act relieves the surety from paying at law what could not equitably be collected of the principal. A creditor has no vested right in any particular remedy, even though that remedy may give him an inequitable advantage. Judgment reversed, cmd judgment for plaintiff for Uve cents damages mid her costs. [323] Tart, C. J., did not participate in the disposition of the case.