48 W. Va. 148 | W. Va. | 1900
In the chancery suit of E. Boyd Faulkner and J. Baker Kear-fott, executors, against Fannie Thomas and others, pending in the circuit court of Berkeley County, J. W. Miller filed before the commissioner and was allowed an account for the sum of eight hundred and seven dollars and eight cents against the estate of the decedent, A. J. Thomas. The executors excepted, the court overruled the exception and entered a decree accordingly and they appeal.
The facts are as follows; About the 27th day of June, 1894, J. W. Miller and George E. Thomas with their respective fathers, J. H. Miller and A. J. Thomas as endorsers, executed a note to the Bank of Berkeley Springs for the sum of one thousand five hundred dollars. The money was put into the partnership business of the two sons, Miller & Thomas. The partnership after being carried on about three months collapsed. J. H. Miller claims that on settlement thereof, there was only two hundred dollars’ of the assets applicable to the payment of the note, which was applied thereto and the residue thereof one thousand three hundred dollars he paid out of his individual funds. He says at the time this note was executed, it was understood between the parties by agreement then made that one-half of the
Nor does the statute of frauds apply. The object of giving the note by the two fathers was to furnish the money for the two sons to go into business, each putting in seven hundred and fifty dollars and the agreement was that George E. Thomas and A. J. Thomas were to be liable for only one-half the note and were to save the Millers, father and son, from liability as to such half and vice versa with the Millers. That is, as to one-half the Thomases were principals and the Millers sureties, and so with the other half, the parties simply changing position. It being clearly a contract of indemnity between them and a very natural one. For if J. W. Miller in any event was to be liable for the whole debt, then A. J. Thomas was not doing anything towards assisting his son in business except to become security for his partner, and if such partner were solvent the son being insolvent such assistance would be nothing as the risk would be nothing
Affirmed.