35 Ky. 110 | Ky. Ct. App. | 1837
delivered the Opinion of the Court.
On the 26th day of May, 1815, James T. Pendleton, as cashier of the Bardstown branch of the Bank of Kentucky, and Thomas Barbor, James Taylor, and William Taylor, as his sureties, executed to the President and Directors of the principal Bank, a joint and several bond, in the penalty of fifty thousand dollars, for securing the fidelity of the cashier in the fulfilment of all his official duties; and, on the 15th of January, 1818, the same cashier, as principal, and Jacob Castleman, Samuel T. Beall, Martin H. Wickliffe, and James D. Breckinridge, as his sureties, in obedience to a by-law of the parent board, gave a supplemental bond for the same purpose, to the same obligees, and in the same penalty, as an additional security.
Afterwards, the Bank of Kentucky brought a suit on the first bond, against all the parties thereto, alleging breaches by official delinquencies occurring, as would seem from, the record, after the date of the last bond; and, having obtained a judgment, afterwards reversed by this Court, in 1824, (1 Mon. 171,) succeeded in obtaining another judgment, on the 7th of September, 1827, against William Taylor (the other defendants having died,) for six thousand six hundred and eighty nine dollars damages, and two hundred and twenty-seven dollars and five cents costs: which was affirmed by this Court, in November, 1829. (2 J. J. M. 564.)
On the 15th January, 1831, Taylor, against whom the last judgment had been rendered, filed a bill in chancery against the representatives of Pendleton, and also against all the surviving sureties in the last bond, and the representatives of the deceased sureties in both bonds, praying for contribution, and alleging that, on the 6th of
First—Because, as he insists, he is not liable for any thing as a co-surety, and if even bound to contribute, he is not justly responsible for half the judgment.
Second—That there is no sufficient proof, either that the judgment was proper, or that it was given for defalcations which occurred after the date of the last bond; or that Taylor had discharged it by paying the amount of it.
Third—Because the decree is for too large a sum.
These objections to the decree will now be considered, in the foregoing order.
I. If Breckinridge be liable, his liability arises altogether from the fact, that in equity, the sureties in the two separate bonds, should be deemed as among themselves, co-sureties, all equally contributary. And on that hypothesis, Breckinridge should equally divide the
So far as there may have been official delinquency after the date of the last bond, it is not only not material, as to the extent of Breckinridge’s liability as a co-surety, that his and Taylor’s undertakings were several and distinct, but it is equally immaterial whether their bonds were of different dates, or were executed simultaneously. The only decisive question is whether they they were both bound as sureties to the same party, for
Then, Breckinridge is liable to contribution, in equity, to the extent of one half of the sum which Taylor was liable to pay, and actually paid, for any delinquency by Pendleton, whilst they were both sureties—provided all the other sureties are insolvent; for during that time, they, as sureties, stood in equali jure; and there being no proof of any conventional qualification of their mutual liabilities to each other, in foro conscientiœ, each was equally liable in equity, for contribution to the other,
We are also of the opinion, that it was proper to charge Breckinridge with legal interest upon a moiety of what Taylor necessarily paid, from the date of the payment to that of the decree. And that, in such a case as this, where Taylor could not have ascertained, either the existence, or the extent, of liability to the Bank, without a suit, and, therefore, was compelled, without any fault or delinquency on his part, to incur costs before he could have shown himself entitled to contribution, it was also right to impose on Breckinridge at least one half the legal costs thus expended.
One half of the original judgment for damages and taxed costs, and six per cent, thereon, from the 6th of January, 1831, to the date of the decree, will make an amount equal to that decreed, if not greater. And if therefore, Taylor was liable to pay, and actually paid, the whole amount of the judgment—a point hereafter to be further considered—the decree against Breckinridge was not exhorbitant, or unjust.
II. We consider the evidence sufficient to show, as against Breckinridge, that the Cashier was justly liable to the Bank, for delinquencies after the date of the last bond, and to the full extent of the judgment therefor, against Taylor.
First. Although there was no such privity between Taylor and Breckinridge, as would make the record of.
Second. If the record of the suit against Taylor be not evidence against Breckinridge, of his being liable to some extent, still there is, we think, other and sufficient evidence to the same effect. Waller, who was the Cashier of the Bank of Kentucky, from the year 1809, until after the date of his receipt to Taylor, in January, 1831, deposed as follows.—“That the judgment obtained by “ the President, Directors and Company, against James “ T. Pendleton and his securities, on his first bond, in “ the Hardin Circuit Court, fell short of the amount “ claimed by the Bank, three or four thousand dollars; and which amount this deponent believes to be properly “ chargeable to the said James T. Pendleton and his “ securities, for money which passed through his hands, “ as Cashier of the Bardstown Branch Bank, and not
Now, although Waller has said that he thought the Bank was entitled to more than it recovered, yet he should be understood as afterwards averring positively, that an amount of money greater than that for which judgment had been obtained, had passed through Pendleton's hands, as cashier, after the date of the last bond, and had never been accounted for, and that the defalcations for which the judgment was rendered, had occurred subsequently to the date of that bond. And Waller should be presumed to have testified upon his personal knowledge, as the Cashier of the parent Bank. But his testimony, as to the extent of defalcations, is fortified, not only by the fact that, notwithstanding a most obstinate and persevering resistance, a judgment was finally obtained, for alleged defalcations, but also by the fact that, Breckinridge, in his first answer, seems to controvert only the date of the delinquency, and, in his amended answer, requires proof of any defalcation, only because he had no personal knowledge respecting it, but demands proof “especially,” as to the alleged date of it. And even if Waller should be understood as not swearing on his personal knowledge, as to the fact of a defalcation
From these facts, we feel bound to conclude that there is, without the aid of the record of the judgment, sufficient proof to show, as against Breckinridge, in this case, that the judgment was proper, and that the delinquencies for which it was rendered, occurred after the date of the bond in which he himself was bound. It would be difficult to exhibit stronger evidence of such facts, in a controversy altogether collateral, like the present; and this should, we think, in the absence of any opposing evidence, be deemed sufficient for all the purposes of this suit.
III. The consequence of the foregoing view of the case is, that the decree is not for more than Taylor was entitled to, if he paid off the judgment, and the whole amount of it.
The only positive evidence respecting this point, is that contained in Waller’s deposition. He proves the genuineness of a receipt, purporting to have been given by himself, as Cashier, to Taylor, on the 6th of January, 1831, for seven thousand five hundred and eighty-five dallars—paid on a compromise, in “fall satisfaction of the judgment.”
As Waller does not say, in his deposition, that Taylor had actually paid seven thousand five hundred and eighty-five dollars, or any other sum, but states only that he had said in his receipt to him, that he had paid that amount, on a compromise, there is no positive proof of actual payment—or of the sum actually paid. But the fact that the Bank had exonerated Taylor from the
But if property had been taken in discharge of the judgment, and therefore Taylor was discharged on a compromise, we have no right to presume, without a single fact tending to such a conclusion, that the property was taken at a fictitious price, to which, by fair agreement, Taylor was not entitled; or, in other words, that, in the compromise, the Bank did not receive nor intend to receive, the full equivalent of its judgment.
We are, therefore, strongly inclined to the conclusion that, the evidence of full payment by Taylor, should be
Wherefore, it is decreed that, the decree of the Circuit Court be affirmed.