Emerson v. Torrey , 10 Vt. 323 ( 1838 )

The opinion of the Court was delivered by

Williams, Ch. J.

This case comes before us, on exceptions to the charge of the county court. The declaration is on a bond, conditioned that the defendants should indemnify the plaintiff against ail claims and demands, due from the copartnership of Emerson, Torrey & Dudley, and save him harmless from all losses and casualties, whatever, in and about said concern-, and from all liabilities, whatever. The plea is non damnificatus, The replication sets forth, that the firm of Emerson, Torrey & Dudley executed several notes to Emerson & Lamb, trading at Boston, did not pay' them at maturity, and that the plaintiff, to save his credit, and to discharge himself from the notes before mentioned, was compelled to pay, and did pay the several notes aforesaid. These facts are denied in the rejoinder. The evidence, as stated in the bill of exceptions, including the deposition of Mr. Green, was given to the jury, and the court charged them it was sufficient, if believed, to maintain the issue, on the part of the plaintiff.

As the defendants, were under obligation to indemnify the plaintiff from all claims against the partnership of Emerson, Torrey & Dudley, and from all liabilities, it was their duty to see that the notes were paid at maturity. If the notes were not paid, the plaintiff, if he was only a surety, was at liberty to pay them, and resort to his bond. The notes were dishonored, by being permitted to remain overdue. The plaintiff might then pay them, and was under no obligation to wait until compelled by course of law.

It could make no difference that the plaintiff was a member of both firms. Emerson, Torrey & Dudley were indebted to Emerson & Lamb. The former firm, as it. respects these notes, were under the same obligation to pay them, as they would have been, if the plaintiff had not been a member of the latter firm. If he paid the notes, he could resort to his bond, which was intended to compel the other members of the firm to pay their debts, and discharge him.

As to the payment; the evidence is, that, on the 20th of November, the notes were charged to the private account of the plaintiff, by Emerson & Lamb, and transmitted to him ; that, on the 23d of November, he assented to the charge, received the notes, claiming to have paid them, and directed this suit. We consider this, as it respects both the plaintiff and defendants, a complete payment. The plaintiff could not contest it with Emerson & Lamb, as the amount had become a private claim against him, with his consent, implied by his receiving the notes. Emerson & Lamb could not deny it, as they had charged the notes to the plaintiff, and transmitted them to him, as paid. The two points in issue were, therefore, fully made out by the evidence, and the charge of the county court was correct.

The judgment is affirmed.