Opinion
(December Term, 1840.)
One surety cannot sustain an action against his cosurety for money paid for the principal, unless he has actually paid the money, or what is equivalent thereto. Even a note, given by an agent of the surety in the agent's own name, will not support the action, although that note was received by the creditor in satisfaction of his demand.
ASSUMPSIT for money paid, etc., tried at Fall Term, 1840, of RUTHERFORD, before Bailey, J. Under the instruction of the court there was a verdict for the plaintiff, a new trial moved for, and the motion overruled, a judgment for the plaintiff and an appeal therefrom by the defendant to the Supreme Court.
Hoke and Saunders for plaintiff.
Bynum for defendant.
The transaction out of which this suit grew, and the facts in relation to it, were precisely the same as in Brisendine v. Martin, ante, 286, except that the note given in this case in satisfaction of the debt and accepted by the creditor was given by the agent of the plaintiff (308) in his own name, and not by the defendant.
The facts in the case are precisely the same as those in the case of Brisendine v. Martin, ante, 286, except that the present plaintiff did not give to the creditors his own note for one-half of their debt, but his son Hardin Nowland, as his agent, settled the business for his father, and gave his (Hardin's) note to the creditors.
The court was of opinion that, as the son acted as the agent of his father in settling the debt by his note, the father could maintain the action for money paid.
We do not perceive any ground of discrimination between this case and that of Brisendine against the same defendant. If the son had interfered officiously, of course the father could sustain no action. But, no doubt, the son acted under the father's authority, and gave his note on behalf of his father and instead of his father's. Still the father has paid no money, either to the original creditor or to the son. After all, there is but a security outstanding for the debt; and as yet the surety is nothing out of pocket, but only liable for the money.
PER CURIAM. Venire de novo.
Cited: Ponder v. Carter, 34 N.C. 243.
(309)