Bone v. Torry , 16 Ark. 83 ( 1855 )

Mr. Justice W at.ttibr,

delivered tbe opinion of tbe Court.

On tbe 21st of April, 1852, Geqrge G. Torrey filed tbe following claim for allowance, in tbe Cbicot Probate Court, to wit:

“ Estate of Allen Moore,

TO GEOBGE G. TOBBY, Dr.

To amount of money paid John Bacon, Alexander Symington, and TbomasBobins, assignees of William T. Irish, Yolney Stamps, and James TI. Murray, of a note executed by said Allen Moore, dated January tbe 4th, 1840, payable on the first of January, 1841, for tbe sum of fourteen hundred dollars, which said note was signed by said George G. Torrey, as security for said Allen Moore, and for eight per cent, interest per annum, and on a judgment previously bad thereon, and a decree was rendered against said George G. Tony and others, in tbe vice Chancery Court, held at Natchez, State of Mississippi, on the 29th of December, 1849, for the sum of twenty-five hundred and sixteen dollars and eighty cents, together with interest, from said date, as aforesaid, and costs amounting to the sum of, for principal and interest to 29th of May, 1851, $2,802 03.”

This account was sworn to in the usual form, and after several continuances had, the claim was allowed by the Probate Court of Chicot County, and ordered to be classed for payment. Exceptions were filed to the decision of the Probate Court, and an appeal prayed and taken to the Circuit Court of said county.

At the April Term, 1853, of the Chicot Circuit Court, the case came up forbearing, upon the assignment of errors and exceptions taken to the judgment, and decision of the Probate Court; and it was upon consideration, held by the Circuit Court, that there was no error, in law, or fact, in the records and proceedings of the Probate Court; and the judgment of said court was, in all things, affirmed, with costs. Erom which judgment and decision, the administrator of the estate of Moore, has appealed to this court.

Tbe whole case turns upon tbe sufficiency of tbe proof adduced before tbe Probate Court to establish tbe claim against tbe estate.

In order to entitle Torry to a judgment of allowance of this claim, against tbe estate of Moore, it devolved upon him to prove that be was tbe security for Moore, and that, as such, be actually paid tbe sum claimed.

It is objected that tbe transcript of tbe record of tbe judgment from Mississippi, against Torrey, and tbe decree also rendered in tbe vice Chancery Court against him, were not sufficient evidence to establish this fact: because, Moore was not a party to either of these suits, nor does it appear, from tbe record in either suit, that Moore was a party to tbe note sued upon.

IJpon examination of tbe record, this objection appears to be well taken in fact, and we apprehend, as this is tbe case, that tbe record would, of itself, be insufficient, to connect Moore as a party, bound in tbe original contract, either as principal or as security. But tbe claimant did not rely alone upon tbe record, but introduced evidence to prove, and we think did sufficiently prove, that this judgment was rendered upon a note executed by Moore, as principal, and Torrey as security. Tbe attorney, who brought tbe suit, testifies to this, as well as tbe agent for the plaintiffs in interest in the suit. Tbe attorney says that be brought tbe suit against Torrey, tbe security, alone; because, as is bis impression, Moore was beyond tbe reach of process at the time. Moore himself recognized bis liability as principal, and proposed to tbe agent to compromise tbe debt, by paying 70 or Y5 cents on tbe dollar : be complained that tbe consideration bad failed, and that it was a bard case on him. From tbe time when this conversation took place, it may be inferred that it was after tbe judgment at law, and perhaps about tbe time of tbe rendition of tbe decree. It is objected that there is no evidence of tbe assignment ; and, therefore, if tbe payment was made, it is not shown to have been made to tbe creditor. Tbe testimony of both tbe agent and tbe attorney, shows that there was a blank endorsement upon tiie note, and this we have held to be sufficient. This seems to have been made after the commencement of the suit at law, and before judgment. But, independent of this, Moore himself fully recognized the right of the plaintiffs, by proposing to compromise and settle with them.

Torrey defended the suit at law, andjudgmentwent against him. The reason why the money was not collected upon the judgment, seems to hare been, because the charter of the Planter’s Bank, in whose name the suit had been commenced, had been declared forfeited, and the assignees filed tlieir bill to have the money collected and paid over to them. It is true that in the chancery suit he withdrew all defence, and this seems to have been done by agreement to give time to him to pay. It is not shown what defence he might have made; indeed, after the judgment at law which was defended, it is not very clear that any defence could have been interposed. It is true that Moore complained that the consideration had failed, but there is no evidence that Torrey was aware of this. But whether so or not, and although we do not question but that, if there had been collusion between the security and the creditor, whereby the judgment was taken for a larger amount than was really due, the principal might, notwithstanding the judgment, show that fact. But we have held, at the present term, in the case of Snider vs. Greathouse, that the record was prima faeie evidence of the liability of the security, and of the liability of the principal over to him, to pay the amount recovered and paid by him. This, the administrator has not done; and, therefore, the decree must be held sufficient evidence of the true amount due to the creditors.

The administrator contends that this debt might have been discharged with the paper of the Planter’s Bank of Natchez, winch was only worth about 50 cents on the dollar; that the security should have looked to this, and have bought in the paper at the market price. We are not aware of any statute of Mississippi, that would compel the creditors to take depreciated Bank paper in discharge of that debt. We are not required to take judicial notice of tbe statutes of a sister State, and' tliere is no evidence upon tbe subject. The judgment was for dollars, and the payment, so far as the facts are before us, could only have been made in gold or silver, the constitutional coin.

The nest question is, was the money paid, or was the debt so satisfied and discharged, as to amount to a payment ?

From the proof, it appears, that one thousand dollars were paid in a draft, which was cashed, and that on the first day of December, 1851, the time of the final settlement of the decree, Torrey executed his note with security, to the creditors, for $1,782 80, payable five months after date, in full satisfaction for the decree, but the notes, up to the date of the examination of the witness, had not been paid. The decree was entered of record fully satisfied, and receipts showing the payment thereof given.

As a general rule, a surety cannot support an action against the principal debtor for money paid for the principal, if he has merely given security for payment. 2 Stark. Ev. 1060, Morris vs. Berkey, 7 Sergt. & Rawle, 238.

But where the creditor, by express agreement, receives a note in payment of a debt, or Bank paper, or property, there would certainly be no good reason,* why such payment, so accepted,, would not be a complete satisfaction of a judgment debt; because,, as between the debtor and creditor, it is for the creditor to say when he has received a full compensation in satisfaction of his debt.

But as between principal and security, where the security pays or satisfies the debt of his principal, by the execution of a new security, or by the payment of property, or depreciated paper currency, there would seem to be more doubt; because, the lia-j bility of the principal to pay the security, is founded upon a pay-] ment or satisfaction of the debt by the security, and the liability of the principal is limited to the actual loss sustained by the surety j by reason of his surety-ship.

If the surety pays the debt, in depreciated paper currency, or in property, the real value of the paper, or property, would be tbe extent of tbe loss to tbe surety; and, consequently, of tbe liability of tbe principal over to him, unless by express contract with tbe creditor, he is subrogated to all tbe rights of tbe creditor. Hickman & Pearson vs. McCurdy, 7 J. J. Marsh. R. 560.

In the case before us, there was no payment, either in depreciated paper or property. Tbe decree was paid by a draft for $1000, which was cashed, and a note with security for tbe balance. Was that note equivalent to cash, or is it such a satisfaction of tbe decree as to raise an implied promise to pay, on tbe part of tbe principal debtor?

That tbe decree was fully and completely discharged and satisfied, and that, too, by tbe security, there can be no doubt, and it is equally clear, that such discharge was as effectual for tbe principal, as if paid by himself. This payment of an approved note, by which the surety bound himself to pay the amount in cash, must, we think, be held prima facie equivalent to a payment in cash. In Cornwall vs. Gould, 4 Pick. Rep. 444, it was held that a surety, who had extinguished the debt by giving a separate promissory note for it, might maintain indebitatus as-sumpsit against his security. Such was, also, the decision of the Supreme Court of New Hampshire, in Pearson vs. Parker, 3 N. H. Rep. 366.

In Stone vs. Porter, 4 Dana, 207, it was held, that a payment in Bank notes by a surety, would entitle him to maintain an action of indebitatus assumpsit; and Judge HobiNSON, who delivered tbe opinion, remarked that if individual bills or notes had been received by tbe creditor, in payment of Iris demand, the surety might maintain indebitatus assumpsit. Such, too, was the decision of the Supreme Court of New York, in Witherby vs. Mann, 11 John. R. 518. And the Supreme Court of Kentucky, in Robinson vs. Maxey, 7 Dana, 105, reviewed its former decisions, and those of several of the sister States; and, in answer to the objection that the money must be, in fact, paid before as-sumpsit can be maintained, said: “The law will not speculate on such remote contingencies. On the contrary, it will consider the substituted bond as equivalent to the amount of it in money, because it was so considered by the parties to it, and may be, and probably is, a full equivalent.”

The presumption that the note was so received, may no doubt be repelled by evidence, showing that it was accepted by way of compromise, and was not taken, or held as equivalent to the nominal amount in money ; but, in the absence of such proof, the better opinion would seem to be, to treat the substituted note as cash. None of the objections can well arise here, that have been urged in some of the cases, that the proof must correspond with the allegation, and that proof of a note executed, will not sustain a money count, because, in this case, there were no formal pleadings, and we only look to the substance of the issue.

No valid objection can be raised to the amount of the allowance by the Probate Court. That was evidenced by the decree of the vice Chancery Court, at Natchez, and as we have held, was at least prima facia evidence of the amount really due upon the claim.

let the judgment of the Circuit Court be affirmed.

Absent, Mr. Justice Soott.