112 Iowa 334 | Iowa | 1900
But the contingency of the failure to pay the second note never arose, and hence the condition of the bond with respect to that was never broken. ' While J. J. Novak did not pay it, his surety on the note did. The condition that he “pay of cause to be paid” the note was fully complied with, as on his omission, the surety, who Avas also bound, satisfied it. It was only on failure so to do that the sureties on the bond were to be bound to meet his obligations. The situation Avas not different than it would have been had persons not on the bond become sureties on the notes of J. J. Novak to the bank. A contingent liability would then have instantly attached, and as quickly ceased, upon payment made by principal or sureties. The. circumstance that plaintiff was surety on the bond did not affect his obligation as surety on the note, and the discharge of his liability on the former Avas merely incidental to, and necessarily resulted from, meeting his promises contained in the latter. The bond secured no particular indebtedness, but Avas intended to cover all aaIiícIi might como Avithin its conditions. The note, executed a long time after, Avas to be paid by the bondsmen only in event those executing it failed to do so. The bank never pressed the bond, but demanded and reeeiAred payment of the note because of plaintiff’s obligation as surety thereon. As Dupont Avas not surety on the second note, and as the condition of the bond Avas not broken by a failure to discharge it by the payors, he Avas not liable for contribution of any part paid thereon. The apportionment of costs Avas authorized by sections 3S53 and 3854 of the Code. — Akiurmed.