Fitch v. Hammer, 17 Colo. 591

Fitch v. Hammer

17 Colo. 591 | Colo. | 1892

Chief Justice Hayt

delivered the opinion of the court.

The attachment in this case is sought to be maintained solely upon the thirteenth ground of attachment as found in the Code, to wit: that the action is brought upon an overdue promissory note for the direct and unconditional payment of money only.

We do not think that this section was intended to cover a case of this kind. The payee named in the note, after maturity, might have maintained an attachment under this section, against the makers, and for this reason it is claimed that *594he could assign such right to the accommodation makers to be used in their favor against one for whose benefit the instrument was made and who with them was jointly indebted upon the same. From the allegations of the bill, and the conceded facts in the case, it appears that appellees stood in a dual relation upon this paper. As to the payee named therein, E. R. Benton, they were makers of the note and jointly and severally liable to him for the full amount thereof. As between themselves, however, and Daniel Fitch,-it appears that they were accommodation makers only, the note having been made for the benefit of Fitch alone. As .accommodation makers they stood as to Fitch in the attitude of sureties upon the note.

The proof show's that they were discharged and the note surrendered to them.. In is well settled by the general commercial law that where payment is made by one of several joint debtors upon a-negotiable instrument, it is a discharge of the debt as to all. And this result cannot be evaded by any change in the mere form which the transaction may assume. ' An indorsement or assignment of the note cannot serve to keep the note itself alive so as to be made the basis of a suit. Where the payment is made by a surety he is in equity subrogated to the right of the creditor as against the maker of the note, so far as the securities given by the maker are .concerned. This is an equitable exception to the rule, that payment by one joint debtor discharges the debt as to all. Under it, the obligation is still held in force for the purpose only of permitting the surety to avail himself of such securities as have been given by the principal debtor. 'Collateral securities are mere incidents of the debt, and where the.debt has been discharged the-securities cannot be made available; hence the. necessity .for the equitable exception now generally recognized.

, -In the. present instance no securities of any kind appear to have- been given by the principal maker of the note, and for this reason alone the équitable rulé- cannot- be relied upon in this .case. This not being 'a casein which the’ suit can be *595maintained upon the original obligation, the remedy by attachment based upon the thirteenth section must be denied.

An examination of the complaint'will show, however, that all the facts are therein pleaded which are necessary to sustain the money judgment rendered against appellant. The making of the note is alleged, and a copy thereof set forth in the pleading. It is further, alleged, that the appellant Fitch was the principal maker of the note and that appellees were accommodation makers only. That Fitch has not paid the note or any part thereof and that appellees have satisfied' the note. These facts were conceded upon the trial, and upon the plainest principles the accommodation makers or sureties may recover of the principal maker the amount paid for his benefit. Pray v. Maine, 7 Cush. 253; Gordan v. Wansey, 21 Cal. 77; New Bedford v. Hathaway, 134 Mass. 69.

It. is contended in this case, however, that as the affidavit for attachment states that the suit is brought upon a promissory note appellees are bound by such statement and cannot recover, because the allegations of the complaint are narrowed by such statement. As we have seen, the complaint states a cause of action. This cause of action is sustained by the proofs. The remedy by attachment with us is ancillary only. Under these circumstances, we know of no principle of law which'would defeat appellees’ recovery by reason of their having alleged as a ground for the attachment matters which did not warrant the issuance of the writ. The judgment against appellant for the amount of the note and interest is right, and is according^ affirmed. The judgment sustaining the attachment will be reversed, appellees to pay the costs of the attachment proceedings and the costs in this court.

Judgment modified.