Ward v. Henry , 5 Conn. 595 ( 1825 )

Bristol, J.

The question was discussed upon the argument of this case, whether the contract alleged to have been made in the first count of the declaration was such, as the law implied between principal and surety from the facts given in evidence ? But whether it is or is not, in the view I take of the case, it is unnecessary to decide ; and being unnecessary, I deem it advisable to give no opinion on the point.

A general count of indebitatus assumpsit for money paid, laid out and expended, is proper in all cases, where the surety has been obliged to pay money for his principal: and as the present declaration contains this count, the only question necessary to decide, is, whether the plaintiff must give notice to the defendant of having paid the money, before bringing the action? And to determine this, it may be necessary to inquire, what contract is raised between principal and surety, when the latter becomes bound for the debt of the former?

This I believe to be a contract to indemnify the surety from any injury which he may suffer, by incurring such liability. This contract is supposed to arise at the moment when the surety contracts his obligation; and is broken the moment when the surety is damnified, whether that damage consists in being obliged to pay the debt, or suffering any other legal injury. Whether this contract of indemnity necessarily includes in it a contract on the part of the principal, that he will pay the debt when due, or that he will furnish the surety with money to pay it, is immaterial; for no one can doubt that it necessarily implies an agreement to pay the money to the surety, provided the surety shall be compelled to pay it from his own pocket.

Suppose, then, A. agrees to pay B. 100 dollars, provided B. is compelled, by virtue of a certain contract, to pay C. the same sum ; must B. give notice of the payment to A., before he can sue for the money? This is the only question in the case.

I believe no such notice is necessary. The admitted rule, that the indorser of negotiable paper must have notice of non-payment by the maker, to render him liable, does not oppose the principle. The liability of the indorser is created, by signing his name in blank on the back of a promissory note, and were it not for the custom of merchants, no contract could he written over that name, except such as the indorsee had specially authorized. The custom of merchants, in this case, supplies what, otherwise, must have been the subject of proof; and we must look to this custom to determine what the contract is, and by what omission, the benefit of it maybe lost.

It has been said, that the principal is liable to suit, without knowing that the surety has paid the debt ; and thus, without any knowledge of his liability to the surety, is subjected to the costs of an action; and it is asked, whether the principal can properly be subjected to such hardship?

Is there any more hardship in this, than there is in subjecting the maker of a promissory note to a suit brought by the indorsee, although the maker may be wholly ignorant who that indorsee is, till he is taken by an attachment? If A. promises B. a certain sum of money, upon a marriage between C. and D., is not A. liable to suit, the moment when the marriage takes place, although he is ignorant that the parties are married? If any hardship, in any such case, should ever occur, (a thing by no means probable,) the party who suffers by it, must ascribe the injury to his own indiscretion in making a contract, by which he obliges himself to pay absolutely, on the happening of a certain event, without stipulating that he should be notified of that event, as a condition precedent ; not to those who enforce contracts according to their obvious meaning, instead of making contracts for the parties.

The rule on this subject, as collected from adjudged cases, will be found to be, that if the obligation of the defendant depends on the performance of an act by the plaintiff, to a third person, or by a third person to the plaintiff ; whether it be the plaintiff’s marriage, giving security, or (as in this case) paying money to such person, or being molested by him; the plaintiff’s right of action is complete, whenever the act is done or the injury sustained ; and it is unnecessary either to prove or allege notice of the act on which the defendant’s obligation is to arise. In such cases, the matter, on which the defendant’s obligation is to arise, is not regarded as lying more properly in the knowledge of the plaintiff than of the defendant. Bradley v. Toder, Cro. Jac. 228. Crane v. Crampton, Cro. Car. 34. Lawes' Plead. 216. 1 Swift’s Dig. 697.

Hosmer, Ch. J. and Brainard, J. were of the same opinion. Peters, J. qualified his assent, by some expressions of doubt.

New trial not to be granted.