Hurlburt v. Hendy ( 1855 )

The opinion of the court was delivered by

Redfield, Ch. J.

I. We see no reason to doubt that the statute of 1851 allows all courts in this state, in all actions ex contractu against more than one defendant, to render judgment against such as are found liable, and in favor of those not found liable. This would entitle the plaintiff to recover on his book account against Ilendy alone.

II. In relation to the offset, (or setoff) we do not very well see how the defendant Hendy can make out any claim, in this action, or probably in any other. To recover, Hendy must show that the money was virtually paid for the benefit of plaintiff, and that by the contract, or in some way it became the plaintiff’s debt to pay.

The most that could be made of the evidence, or finding of the auditors is, that plaintiff agreed to indemnify Hendy against half the loss he might sustain, by reason of having endorsed this note. And allowing that a verbal contract of this kind, made upon sufficient consideration, as this was undoubtedly, would be binding upon plaintiff, and although hesitating at first, whether it should not be in writing, I should now think it would be valid without writing as between the original parties, from whom the consideration moved, and was received, still the same rules will apply to it, as to written indemnities. And in such cases, the person indemnified cannot ordinarily substitute another security of the debtor, without releasing the guaranty or indemnity. And in no case could this be done, without showing clearly a positive and invincible necessity for so doing. And nothing more appears in the present case, than that Green told Hendy he could not pay the note, and therefore Hendy paid it. We think the plaintiff had the right to have the matter brought to final issue when the first note became due, and if that had been done, there is no certainty it might not have resulted in payment. At all events, as that seems to have been the nature of plaintiff’s undertaking, he is not obliged to be subjected to any other contingency, without consent. And as the defendant Hendy, by his own a¡ct has rendered it impossible to be determined, whether the note could have been then enforced, he must assume the debt, or at all events the burden of showing beyond all peradventure that the debt would not have been paid, if he had not furnished the money.

Judgment affirmed.