142 Ala. 363 | Ala. | 1904
It appears from the bill in this case, as amended, that the appellee here was surety upon the bond of Thomas-Bailey Machine Works for the faithful performance of a contract entered into by the principal with the Dampskibsaktieselskabet Hábil, a corporation under the laws of the Kingdom of Norway. That corporation on the 19th day of June, 1900, instituted a suit against appellee as surety on the bond and after a contest by the surety, obtained judgment against it for the sum of $2,381.90, and execution had been issued on the judgment. It further appears that on the 12th day of November, 1900, the Hábil Company instituted a siíit against members of the firm of Thompson-Bailey Machine Works, the principals in the bond, for the breach of the contract for the performance of which the bond was given. The Thompson-Bailey Company had interposed defenses to the suit, among them non est factum; the general issue; that the delay in the completion of the contract was due to extra work, and to the stoppage of the work to await inspection by the inspector of the 'Company; a plea of set-off to the amount of $1,-603,10, and an unauthorized alteration of the contract'
Independent of statute, the general rule is that the creditor cannot be compelled to exhibit his remedy against the principal before resorting to the surety.— Skinner v. Barney, 19 Ala. 698; Bank of the State of Alabama v. Goden & Lowry, 15 Ala. 616; Abercrombie v. Knox, 3 Ala. 729. A request, however, to- sue the principal operates to discharge the-«surety when by the negligence of the creditor the means of recovering the debe, has been lost or damage has accrued to the surety. It does not appear from the bill that any request to sue the principal had been made, but if' such be the fact, and the complainant has been damaged by the negligence of the creditor, this damage was available as a plea in bar in the action against him. — Howle v. Edwards, 97 Ala. 649.
When the surety is sued alone, he may notify the principal to defend the suit, and upon the failure of the principal to idemnify him and defend, the surety, upon paying the judgment against him, may in the absence of fraud, recover the amount paid from 'the principal, whether the principal wa.s actually liable or not. — Riley v. Stallworth, 56 Ala. 481.
No fact constituting a discharge of the surety is a verred in the bill. The utmost that can be said to aver, is that an action had been instituted by the creditor against the principals; that certain pleas in bar had been interposed bv them therein, and that the pleas are true. These facts do not constitute a discharge. In the absence of the general grounds of equitable jurisdiction to enjoin the collection of judgments at law, it cannot be doubted that if no- suit had been instituted against the principals, the mere existence of the defenses would not authorize the granting of the injunction o-f the judgment obtained against the surety. The case would stand upon such averments alone upon a bare right to compel the creditor to exhaust his remedy against the principal before resorting to the surety, a right which has been stated, does not as- a general rule exist- The surety in such case Avould have to- show that he was prevented from making the defenses available in the action at laAv against him, by circumstances not attributable to his neglect no-r inattention. — McGrew v. Tombeckbee Bank, 5 Porter, 547.
The defences aArerred are clearly legal, and, while they are meritorious, the bill fails to negative fault upon the part of complainant in failing to malte them, and there is an. absence of averment of any fraud or any act upon the part of the plaintiff to which its failure to successfully, defend can be attributed.
We see no distinction in principle between the hypothetical case of the mere existence of defenses, above stated, and one where they have been incorporated into pleas by the principals in an action against them. Neither would be advisable as- a discharge to the surety, and it is only where such discharge exists that the surety can -enjoin the collection of a judgment again át him as an independent ground of equity jurisdiction.
Reversed and rendered.