Gorman v. Nairne , 12 Ala. 338 ( 1847 )

ORMOND, J.

The evident meaning of the terms, “hold the said Gorman harmless,” &c. in the instrument recited in the record, is, that the plaintiff should not be prejudiced, by advancing to the defendant such a sum as would probably be coming to him, upon his claims, when the insolvent estate was finally settled.

It would be a most unreasonable interpretation of the contract, that the plaintiff intended to guaranty, that the amount so advanced, would in any event be coming to the defendant on his claims; or to guaranty the legal sufficiency of the claim. Nor can it be presumed, he designed to bind himself to make no objection to the allowance of the claims. His duty to each creditor required him to raise all proper objections to each claim asserted against the estate, and the advance must be understood as dependent upon the condition that the claim was allowed.

It was the duty of the defendant to support his claim, and as one of the creditors of the estate, having filed his claim, he is affected with notice of all the subsequent proceedings. The receipt by the defendant of the money, as on a claim due from the estate, implied an assertion on his part, that he had a legal claim against the estate; and this being unfounded in fact, it may be recovered back, either as money had and received to the use of the plaintiff, or upon the express promise of the defendant to hold the plaintiff harmless.

Judgment reversed, and cause remanded.