23 Ind. 529 | Ind. | 1864
Devol aucl Fordyce brought an action in the court below against McIntosh, Beharrell, Morris, and Dodgers, alleging in their complaint that McIntosh and Beharrell were partners; that they agreed to dissolve their copartnership; that Beharrell assigned his interest in the assets of the firm to McIntosh, in consideration of which the appellees made their bond in the penal sum of $3,000, with the following condition:
“ The condition of this obligation is, that whereas said McIntosh and Beharrell, having dissolved copartnership in business, and said McIntosh has purchased all the interest of said Beharrell in said business, and is to collect all outstanding claims in favor of said firm, and pay all debts of every kind against said firm; now, therefore, if said John McIntosh, or his representatives, shall pay all of said, demands against the said firm of McIntosh $ Beharrell,
It is further averred that the appellants obtained judgment, in the Floyd Circuit Court,- against McIntosh and Beharrell for $963.75, on a debt due from the firm at the time of execution of said bond; that an execution thereon had been issued, and returned “no property found.”
A demurrer was sustained to this complaint, which presents the only question in the case at bar.
It is attempted to sustain the ruling of the court below, on the authority of the cases of Schooley v. Stoops, 4 Ind. 130, and Tate v. Booe, 9 Ind. 13. These cases have been overruled by this court in the case of Britton v. Johnson and Another, at this term.
By the condition of the bond in the present case, McIntosh was bound to pay all the debts of the firm of McIntosh ft Beharrel; but no particular time of payment was specified. No certain time being provided for, the law required payment to be made immediately, or at least as soon as the debts were due. Wright v. Whiting, 40 Barb. S. C. Rep. 235; Churchill v. Hunt, 3 Denio, 324, and the authorities cited.
The rule laid down in the case of Gilbert v. Wiman and Others, 1 Comst. 550, seems to be the true one. Fratt, J., in his opinion in that case, when decided in the Supreme Court, said: “ When the instrument deviates the least from a simple contract to indemnify against damage, even Avhere the indemnity is the sole object of the contract, and where, in consequence 'of the primary liability of other persons, actual loss may be sustained, the decisions of our courts, although by no means uniform, have gradually inclined toward fixing the rule to be one of actual compensation for probable loss; so that, in contracts of that character, it may now be considered a general rule, both in this country and in England.”
Beharrel could have recovered on this bond against the
Counsel for appellants argued: 1. The failure of the principal obligor to discharge the partnership liabilities, and his suffering a judgment to be recovered against the obligee, were a breach of the condition of the instrument. Thomas v. Allen, 1 Hill, 145; In the matter of Negus, 7 Wend. 499; Wright v. Whiting, 40 Barb. 233; Gilbert v. Winan, 1 Comst. 550; Mann v. Eckford's Executor, 15 Wend. 503; Cutter v. Southern, 1 Sandf. 116, note 1; Holmes v. Rhodes, 1 Bos. & Pull. 638; Hodge v. Bell, 7 T. R. 93; Churchill v. Hunt, 3 Denio, 324; Lake Ontario Company v. Mason, 16 N. Y. 451; Ham v. Hill, 29 Miss. (8 Jones) 275; Chase v. Hindman, 8 Wend. 452; Rockfeller v. Donnelly, 8 Cowan, 639. 2. The bond given to pay firm debts, was but additional security to the debt of plaintiffs. The debt is the principal thing, and the security is incident to and always follows it. The creditors, though not immediate parties to the security, are entitled to its benefit; 4 Kent, 6 th ed., 307 ; 1 Story's Equity, sec. 502; Homer v. Savings Bank, 7 Comst. 478; Mann v. Harrison, 1 Eq. Ca. Abr. 93; Vail v. Foster, 4 Comst. 412; Phelps v. Thompson, 2 Johns. Ch. 418; Moses v. Mergalroyd, 1 Johns. Ch. 119; Kip v. Bank of New York, 10 Johns. 65; and this, even though the creditor did not originally contract on the faith the security, or Enow of its existence. Curtis v. Taylor, 9 Paige, 432.
Counsel for appellee argued : The benefits of the bond are strictly personal to B. Until he is actually damaged by the non-performance of the conditions of the bond, he can maintain no action. Schooley v. Stoops, 4 Inch 30; Tate v. Booe, 9 Ind. 13.
Tbe judgment below is reversed; cause remanded to said court, with directions to overrule tbe demurrer to tbe complaint, and for further proceedings. Costs here.