Grygiel v. Marcille ( 1930 )

This is an action in assumpsit by an accommodation maker of a promissory note against his co-makers. The case is before us on the plaintiff's exception to a ruling of the trial justice nonsuiting the plaintiff.

The plaintiff, as an accommodation to the defendants, signed with them, as a co-maker, a promissory note payable to a bank. The note was renewed from time to time and finally the officers of the bank notified the plaintiff that the bank would hold him liable and look to him for payment. Thereafter the plaintiff, before making payment to the bank, commenced this action. Before trial of the case in the Superior Court plaintiff paid the bank and took up the note. Said justice ruled that the plaintiff's right of action did not accrue until he made payment to the bank, and a nonsuit was entered.

We think the ruling was correct. The right of an accommodation maker for recourse against the party accommodated is that of a surety against the principal debtor, 8 C.J. p. 269, and "the surety's proper remedy at law, ordinarily, is to pay the debt and pursue the principal for reimbursement." 50 C.J. p. 230.

The plaintiff's cause of action did not accrue until he paid the note which was after the commencement of this action.Thayer v. Daniels, 110 Mass. 345; Wheeler v. Young,143 Mass. 143; 8 C.J. p. 270, § 423; 32 Cyc. p. 256.

The plaintiff's exception is overruled and the papers in the case are remitted to the Superior Court for the entry of judgment on the nonsuit.