Lewis v. Brown , 41 Me. 448 ( 1856 )

Goodenow, J.

This is. an action to recover the amount of money paid by the plaintiff as surety for the defendant, on a bond dated November 23, 1835. It is not denied, but admitted that the plaintiff did in fact pay or secure to be paid to the assignee of the obligee, the sum of $210, August 6, 1852, and that he was surety for the defendant on said bond.

But the defendant contends that, on that day, he made a compromise with the assignee of the bond, by which he was to be discharged from all further liability, upon paying $279,04, in ninety days, which sum he subsequently paid accordingly ; and that the plaintiff was a party to that compromise, and bound by it. William T. Hillard, Esq., introduced as a witness by the defendant, testified, subject to objection, that he saw the parties before any thing was done on this bond, and after a good deal of conversation, the “ defendant agreed to pay a certain proportion, and the plaintiff the balance of the sum to be paid, at which time he gave the discharges already introduced;” that he would not say that he ever saw the plaintiff and defendant together, or that the plaintiff ever agreed that he would discharge the defendant from responsibility to pay back; that he, the witness, agreed with the defendant that he should be discharged from the bond, and told the defendant that he should not be called on to pay any more, but the plaintiff was not present. It was distinctly understood between the witness and the defendant that he should not be called upon to pay any more; otherwise he would not have obligated himself to pay what he did; that he gave the defendant assurance from what conversations he had had with the plaintiff, but he could not recollect any of the language he made use of to the plaintiff; that he acted as the agent of Mr. Vaughan in making the settlement; that the plaintiff was as anxious as the defendant that the matter should be compromised for as small a sum as possible, and that the defendant should pay all the witness could get out of him, and that he understood from the plaintiff that the defendant was to pay the amount named in his discharge, and should not he called upon for any thing more, hut that he could not give his language.

In general, the opinion of a witness is not evidence; he must speak of facts. It may have been derived from some unwarrantable deduction of the mind, from premises not well established. Mr. Hillard does not state any facts, from which we can understand that the plaintiff agreed to discharge the defendant from all liability over to him as his surety. The written discharges referred to by Mr. Hillard, only engage to discharge the bond when the notes given by the parties should be paid. They have no relation to the rights and obligations of the plaintiff and defendant between themselves.

The defendant has not indemnified the plaintiff as his surety, according to the undertaking which the law implies. He did no more, but less than he was bound to do, when he paid a part of the damages claimed by virtue of his bond.

Mr. Hillard was not the plaintiff’s agent. We do not find that he had any authority to surrender the plaintiff’s claim upon the defendant for indemnity, if in fact he undertook to do so. It is a meritorious claim, and should not be extinguished without unequivocal evidence that the plaintiff has, for a valuable consideration, agreed to its extinguishment.

The discharge of the defendant in bankruptcy cannot avail him in this case. Dole v. Warren, 32 Maine, 94.

A default should he entered.

Damages §210, and interest from August 6, 1852.

Tenney, C. J., and May, and Hathaway, J. J., concurred. Appleton, J., dissented.