| N.H. | Aug 5, 1877
The jury have found that both Coombs and Wood understood that the money in Leavitt's hands belonged to Coombs. There was evidence in the testimony of Hunnewell, Towle, and Wood to warrant the charge and the finding. It was not necessary that Leavitt should be a party to that understanding. His written agreement, to repay the money to Wood, was in fact an agreement with Wood as the agent of Coombs, and for his benefit. A payment to Wood would have been a bar to a recovery by Coombs, because made to his authorized agent; and a payment to Coombs would of course have barred a recovery by Wood, because made to the principal. It was a matter of indifference to the sureties whether Wood pledged his own money, or money placed in his hands by Coombs. That Coombs furnished the money is admitted; but what passed between him and his agent was material as affecting the ownership of the money. It did not require the assent of Leavitt to make valid the understanding between Coombs and his agent on that question.
It was a controverted question, whether the arrangement which controverted the pledging of Coombs's money was abandoned, or perfected *144 What arrangements were proposed and adopted, and what admissions were made to Leavitt, were important in determining the question of ownership; and in this view the testimony of Hunnewell and others, objected to, became material.
The discharge of Hoyt could not in any way affect the liability of Leavitt. Hoyt was in no way liable to Coombs for the money. Although it was left in the hands of Leavitt for the joint security of both sureties, the contract was the sole contract of Leavitt with Coombs. When Coombs appeared, according to the tenor of his recognizance, the joint liability of the sureties was thereby terminated, leaving Leavitt with money of Coombs in his possession for which he alone had become responsible to Coombs through his agreement with Wood. If Leavitt had squandered or misappropriated the money, Coombs would have, had no remedy against Hoyt.
Upon the issue tried, neither party claimed that there could be any division of the money, and we are not called upon to inquire whether the trustee was chargeable for the excess only above the value of Wood's services. In this view, the instructions given and the refusal to instruct were correct. The objection, that Leavitt could not be charged because he was bound by his written agreement to return the money to Wood, is not well taken, because, if the money belonged to Coombs, a payment by Leavitt to him would discharge Leavitt from his agreement with Wood, and a judgment against him as the trustee of Coombs is the same in effect as a payment by Leavitt to Coombs.
Exceptions overruled.
DOE, C. J., did not sit.