Powers v. Nash , 37 Me. 322 ( 1853 )

Appleton, J.

— The plaintiff, by signing the note, unquestionably made himself liable, if the insurance company and the defendant assented thereto. That the company assented to the substitution of the plaintiff’s name for that of the defendant’s minor son, is to be inferred from the fact that they received the note without objection and collected the amount due. The defendant gave no notice of dissatisfaction, either to the plaintiff or to the company, before the suit on the note was commenced. Elis statements to his family, of his dissent to what the plaintiff had done, uncommunicated either to him or to the insurance company, are not admissible in evidence. The defendant retained the insurance he had effected, and to which he was not entitled and for which there would have been no consideration, except the note first given and to which subsequently the name of the plaintiff had been affixed. When an action was brought against him and the plaintiff, he interposed no defence. Prom all the circumstances, the assent of the defendant to the erasure of his son’s name and to the substitution of the plaintiff’s may be presumed, and in such case they would be jointly liable on the note. Speake v. United States, 9 Cranch, 28.

Even without assent it-would be a grave question whether the plaintiff would not be entitled to recover, the defendant having received the benefit of his name as surety and the execution upon which he was liable having been paid by him. The rights of a surety, who enters into that relation without the request or knowledge of his principal, are protected and enforced by the civil law. “ Where the engagement,” says Pothier, in his Treatise on Contracts, part 2, c. 6, § 1, “ is made without the knowledge of the debtor, it cannot be supposed to include any contract between the surety and the debtor, but there is supposed to intervene between them that kind of quasi contract which is called negotiorum gestorum.” The surety, in the appropriate form of action, can recover what he has thus paid. Burge on Suretyship, 357. The very case is provided for alike in the code of Justinian as in that of Napoleon. Code Nap. Tit. 14, § § 2014, 2028.

It was held in Hughes v. Littlefield, 18 Maine, 400, that it furnished no defence to a surety that he voluntarily became such without the assent or knowledge of his principal. A debtor sent a promissory note to his creditor in payment of his debt, by the hand of a third person, who, before delivering it, at the request of the creditor and for the purpose of giving credit to the note, put his name on the back of it, and such third person was held liable as an original promisor. Bryant v. Eastman, 7 Cush. 111. The right of a surety to contribution, at common law, was allowed under circumstances which repelled any promise to contribute in Norton v. Coons, 3 Den. 130. In this case Bronson, C. J. remarked, that “ where it was settled that the Courts of law would enforce contribution between sureties, what was before only an equitable became a legal obligation ; and where there is a legal right to demand a sum of money and there is no other remedy, the law will, for all purposes of a remedy, imply a promise of payment.” Much more does this implied promise arise as against a principal. The rights of the surety to subrogation, who became such without the request or knowledge of his principal, have been sustained against the creditor in Matthews v. Aiken, 1 Coms. 595. A court of equity will imply a promise on tlie part of the creditor to subrogate the surety to all his rights and remedies, in case he resorts to the latter for payment upon his guaranty. At law, the legal liability springs from the equitable obligation, and a promise may be implied from the circumstances of the case and the equitable relations of the parties where none in fact existed. Defendant defaulted.

Shepley, C. J., and Tenney, Wells and Howard, J. J., concurred.