Kilgore v. Moore , 1 S.C. 192 ( 1869 )

The opinion of the Court was delivered by

Moses, C. J.

To meet the question presented to the Court in this case, it is not necessary to inquire whether, in the absence of the agreement referred to, Fair and Hair, the surviving administrators of Summers, would have any legal remedy • against James Kilgore, if alive, or his representatives, who are now before us.

While it is not to be denied that an executor or administrator, who, under misapprehension, might make a payment which would operate as a devastavit against himself, could recover back the money, still the principle cannot affect the parties here, because any right of action which they might have against the bank does not preclude them from enforcing the agreement made on adequate consideration with James Kilgore, in his lifetime.

It is competent for parties to change the relation in which they stand to each other as to their legal rights. Whilst a maker is responsible to his endorsers on a promissory note, they may vary or waive the liability; and, if they can establish such agreement by sufficient testimony, the law holds them fixed and bound by their contract. — Brunson vs. O’Conner, 10 Rich., 175.

The evidence in the case before the Court does not show that any change was made in the condition of the parties as to their respective positions on the Summers notes; but it was conclusive to prove that the payment of the notes endorsed by Kilgore out of the assets of the estate of Summers, by his administrators, (of whom Kilgore was one,) was made at his request, and upon the promise “that, if the estate did not hold out, the first endorser should pay the balance on the notes.”

They may well demand of his administrators that they shall be placed in the same situation they would have occupied if they had not, at his request, paid the notes, and - been held to ansvrer for the devastavit such payment made.

We are to suppose that they acted on the undertaking assumed by him, and they should not suffer a loss by carrying out an agreement made, at his request, for his benefit.

The motion is dismissed, and the decretal order of the Chancellor affirmed.

Willard, A. J., concurred.