Somers v. Johnson , 57 Vt. 274 ( 1884 )

The opinion of the court was delivered by

Veazey, J.

The plaintiff stands on a sound legal proposition, viz. : that if one of two joint sureties for an insolvent principal holds collateral from the principal, the other surety is in equity entitled to share in it. But we think the referee has failed to find the relation of co-suretyship between the plaintiff and defendant to its full legal import, or a state of facts which warrants such inference. There was no such relation before they entered into the written agreement. The language of that writing does not necessarily import an agreement to share in collaterals. They did not understand when they made the agreement that the defendant had any security for his obligation on the bond, which he had signed as surety. The draft from which the fund in question was realized, was not given to the defendant as security for signing the bond. There is nothing in the report to show that the defendant was in greater peril on his bond than the plaintiff was on his; nor to show why the defendant should give the plaintiff the benefit of the defendant’s security if he had any. The agreement was to join in the defence and share the expense and liability. They settled before trial by paying equally as agreed. In the light of the facts reported we do not think we should construe this as an agreement to become co-sureties except to the extent expressed in the writing; not an agreement to share in the fund in question.

Judgment affirmed.