38 N.J. Eq. 151 | New York Court of Chancery | 1884
This is an application for direction. In September, 1878, the persons constituting the firm of Selden T. Scranton & Com
As a general rule, all that the surety is entitled to against the principal debtor is indemnity; in other words, to be made whole. If he pays less than the full amount due, or in depreciated currency, all he can recover is what he paid, or the value of what he gave in satisfaction. He has a right to be. reimbursed, but to nothing more. Burge on Suretyship 359; 2 Dan. Neg. Instruments § 1342; Snyder v. Blair, 6 Stew. Eq. 208. In Fowler v. Strickland, 107 Mass. 552, it was held that an accommodation endorser has the same right to purchase paper on which he is liable that any other person has, and that in case he becomes the purchaser of such paper, he is entitled to recover the full amount due without regard to what he paid for it. The
In the present condition of affairs, then, it is clear that no dividend should be paid on this claim. The endorsers have paid nothing for the makers, and no part of the assets of the makers should therefore be distributed to them. Nor do I think that any payment by Selden T. Scranton & Company, short of the full amount due, will entitle the claim presented on their behalf to participate in the distribution of the assets of the Oxford Iron Company. Though there are two persons liable, there is but one debt. One person is liable as principal and the other as surety. Now, as between these two, it is the clear right of the surety to be protected against loss to the extent of the principal’s property. The surety is not bound to pay anything that the principal’s property, will pay. As against the principal, the surety is only bound to pay what the principal cannot. So clear, is the justice of this principle that it has been enforced, by legislation, against their common creditor, after he has recovered judgment against both; for now, after judgment has been recovered, in the same action, against both maker and endorser, the law commands that the debt shall be first made, if it can be done, out of the properly of the maker, and if the endorser is compelled to pay, he is entitled to an order that the judgment stand against the maker for his benefit. Ben. p. 853 § 36. Taking
The proper method to be pursued in distributing the assets of the two estates towards the payment of the debts under consideration, will be this: first, these debts will be entitled to their just pro rata share of the assets of the Oxford Iron Company; to the extent of the sums so paid the debts will be respectively reduced, and then for the balance remaining unpaid, the holders of these debts, who have also proved their claims against the estate of Selden T. Scranton & Company, will be entitled to their just pro rata of the assets of that estate. But in no event is the claim presented against the Oxford Iron Company on behalf of Selden • T. Scranton & Company, founded on their liability as endorsers, entitled to a dividend.