Schnitzel's Appeal

The opinion of the court was delivered, by

Woodward, C. J.

The auditor states and decides the question so well as to make it unnecessary for us to do more tha-n allude to the distinction taken by appellant’s counsel between this case and the authorities relied on by the auditor, especially the case of Potts v. Nathans, 1 W. & S. 155. The judgments against the principal and surety in that case were several, here it was joint. Berg and Mast were bound by the same judgment, and it is argued that Schnitzel became bail for them jointly, and therefore that Mast, by paying the judgment, acquired no right of subrogation as against Schnitzel — but only performed the condition which Schnitzel undertook that he should perform.

If the facts justified this position there would be considerable force in it, but the record of the original judgment showed that Berg was the principal debtor, and Mast the surety, and the auditor reports that Schnitzel became bail at Berg’s instance, and without any communication whatever with Mast — that Mast was urging Berg to pay the debt, when Berg informed him he could get a stay of execution for a year by giving bail — that Mast did not like it, and again insisted upon Berg’s paying the debt — but that Berg solicited Schnitzel to become surety for him —that they had several interviews about the matter, and that Berg gave Schnitzel indemnity in the form of a judgment-note for $1200, and assigned him certain shares of stock — and that in these interviews Mast took no part, and it did not appear that he was acquainted with Schnitzel.

Now, notwithstanding the record shows a joint judgment against Berg and Mast, and a general entry of bail by Schnitzel for stay of execution, it is impossible to shut our eyes upon the fact that Schnitzel interposed at the instance and for the benefit of Berg solely, and that his act was prejudicial to Mast, and not for his benefit.

It is the case, then, of a prior surety who h^s paid the debt of the principal seeking satisfaction out of a subsequent surety, who, by his interposition, got time for the principal debtor to the prejudice of the prior surety. All the equitable considerations discussed in the cases apply here, and the circumstance that Schnitzel was indemnified, to some extent at least, increases the equity of Mast’s demand upon him.

It is argued [hat the record could not be contradicted by an inquiry into the manner in which Schnitzel became bail. The record does not show that Schnitzel bound himself for both defendants — it only shows the note of his obligation. The fair inference would be, perhaps, that he was bound for both, though as the record showed Mast to be only a surety, it would be no unreasonable construction that Schnitzel bound himself for the debt, and therefore only for the debtor. But to explain a doubtful implication from a record, and to reduce it to a matter of fact, is not to contradict the record. Whatever might be the meaning of the record, by itself, there is no doubt about its meaning in view of the facts found by the auditor, and as little doubt that the well-settled rule of law should be applied.

The decree is affirmed.