Wolverton v. Davis

Hinton, J., delivered the opinion of the court. The question to which the arguments of counsel on both sides of this case were chiefly directed, and upon the solution of which our decision must depend, is whether a promise by one to indemnify another, who has become co-surety with him in an official bond, at the promisor’s request, falls within that provision of our statute of frauds which requires that “ a promise to answer for a debt, default or misdoings of another” must be in writing, to he enforceable by action. Code Va., 1873, ch. 140, § 1. The question arises in this way: In 1858 one Thomas K. Davis, being elected sheriff of Prince William county, executed, as he was required by law to do, a bond to the Commonwealth of Virginia, in the penalty of $70,000, for the faithful discharge of his duties, with William W. Davis, Samuel Wolverton, and nine others as his sureties. By reason of this suretyship Wolverton was compelled to pay off a judgment, amounting in January, 1882, the time at which it was discharged, to the sum of [73] $1,179.13. Thereupon Wolverton instituted this action to recover of his co surety, William W. Davis, the full amount so paid. In his amended declaration he sets out the foregoing facts; alleges the insolvency of Thomas K. Davis; and avers that he became a surety in the bond at the request and upon the promise of the said William W. Davis that he would indemnify him against any loss resulting from his suretyship. In the progress of the trial the plaintiff, Wolverton, offered to introduce witnesses to prove that, prior to the execution of the heforementioned hond, the defendant and Thomas K. Davis agreed orally that the defendant, William W. Davis, should be deputy of Thomas K. Davis; that they would divide the profits of the office between them; and that the said Thomas K. Davis and William W. Davis were each to furnish sureties in the said official bond of Thomas K. Davis as sheriff. And that, in pursuance of said agreement, the defendant requested the plaintiff to become surety in the said bond, and orally promised the plaintiff that if he, the plaintiff, would become one of the sureties on said bond, that he, the defendant, would indemnity him against all loss arising therefrom; and that he was induced to sign the bond by reason of this promise. But the court excluded the evidence, being of opinion that it was not admissible to prove a liability on the defendant for the whole amount, because the promise was not in writing. It is therefore upon exceptions to this ruling of the circuit court that the case is before us for review; and a more difficult question for judicial decision, if the mere weight of authority be looked at, can scarcely be imagined; for in England, even at this day, and notwithstanding the decision of Vice-Chancellor Malins, in Wildes v. Dudlow, 23 Wkly. Rep. 435, the. authorities cannot be reconciled, and in America the authorities would seem to be about evenly balanced, there being the decision of “ eight States [see 3 South. Law Bev. 444] at one end of the scale to weigh against eight at the other.” And see, also, on this subject, Throop, Verb. Agr. 459 el seq., where all the cases are [74] reviewed. It is believed, however, that no matter what may be the law, where the promisor is also a surety—a point to be presently discussed—that the result of the authorities as a whole is as stated by the learned editor of Smith’s Leading Oases in his notes to Birkmyr v. Darnell, Vol. 1, p. 326, that a promise by a stranger to the debt to indemnify a surety is prima facie within the statute, because the principal is bound by an implied obligation to do that which the promisor agrees to do expressly, and the promise is therefore really to answer for default of the principal. 1 Smith, Lead. Cas. (8th Amer. Ed.) pt. I, 538; Green v. Cresswell, 10 Adol. & E. 453; Cripps v. Hartnoll, 31 Law J. Q. B. 150; Kingsley v. Balcome, 4 Barb. 131; Baker v. Dillmann, 12 Abb. Pr. 313; Easter v. White, 12 Ohio St. 219; Kelsey v. Hibbs, 13 Ohio St. 340; Brown v. Adams, 1 Stew. 51; Brush v. Carpenter, 6 Ind. 78; Draughan v. Bunting, 9 Ired. 10; Simpson v. Nance, 1 Speer, 4; Bissig v. Britton, 59 Mo. 204. And certainly, upon the reason of the thing, this must be so; for not only does such a case fall within the mischief intended to be remedied by the statute, but it is within the words also. The promise, in substance and effect, is this: “If you will become bound as surety for this sheriff, I will save you harmless from the consequences of your suretyship.” And, to use the vigorous language of Lord Denman, in Green v. Cresswell, supra, “if there had been no decisions on the subject, it would appear impossible to make a reasonable doubt that this is answering for the default of another.” But it is said by some of the text writers, and such is the position taken by the defendant in error in this case, that whenever the promisor is a surety also, and therefore answerable for the default of the principal independently of his promise, the law is otherwise; and that any engagement which he may make that it shall be paid, or that the surety shall not be compelled to pay it, must be regarded as contracted on his own behalf, and not for the default of the principal. But we do not think that there is any real foundation for any such distinction, and certainly none such is sane [75] tioned by tbe leading cases of Thomas v. Coole, 8 Barn. & C. 728, and Green v. Cresswell, 10 Adol. & E. 153, although in the last-mentioned case it was brought to the attention of the court by counsel in the course of the argument that in Thomas v. Gook the defendant was liable upon the bond, independently of the promise upon which he was sued. The fact is that while, in the large majority of the cases where the promisor was also a surety, the promise has been held not to be within the statute, that circumstance does not appear to have been relied upon as the ground of decision. The true question to be determined in every such case is, as announced by the supreme court of Missouri in Bissig v. Britton, supra, where the promise amounts to an original undertaking, and is supported by a direct consideration, or is collateral in its character, and depends upon some act to be admitted or performed by some third person. Draughan v. Bunting, 9 Ired. 10; 1 Wms. Saund. 211c. Applying this test to the case in hand, it seems to us clear that the promise of indemnity made by the defendant is within the statute, and not capable of enforcement. It follows that the judgment of the circuit court of Prince William county was right in only holding the defendant, Davis, liable for his aliquot share of the loss occasioned by the default of his principal, and that the same must be affirmed. Judgment aeeirmed.