39 N.H. 209 | N.H. | 1859
Tbis is a suit to recover tbe amount of two promissory notes, given by tbe defendant to tbe plaintiff’ to indemnify him for signing notes with tbe defendant as bis surety; and it appearing that at tbe time of tbe bringing of the suit tbe plaintiff bad paid nothing as such surety, tbe question is, can be recover anything, and if so, bow much ?
In Hazeltine v. Guild, 11 N. H. 390, tbe whole question is settled, and we see no reason to depart from the principles there established. By tbe doctrines of that case tbe plaintiff cannot recover anything beyond nominal damages, until be has paid part or all tbe debt for which be is surety. But it is not necessary that sucb payment be made before tbe suit is brought. It is enough that it be paid at any time before the trial. In accordance with tbe doctrines of Hazeltine v. Guild, are tbe cases of Swift v. Crocker, 21 Pick. 241; Cushing v. Gore, 15 Mass. 69; Little v. Little, 13 Pick. 426.
In principle, tbis case is like tbe case of covenant on a warranty against incumbrances, where nominal damages only can be recovered until payment, or the amount is otherwise fixed. Willson v. Willson, 35 N. H. 235; Brooks v. Moody, 20 Pick. 474. In this class of eases only tbe amount actually paid can be recovered, because tbe eove3iantee may never be disturbed, as tbe bolder of the mortgage, where that is tbe incumbrance, may obtain payment of tbe covenantor. A similar objection exists to the recov
The opinion of the court, then, is that the measure of damages will be the amount paid by the plaintiff at any time before the trial; and that, if no such payment be shown, nominal damages can be recovered, and no more.
The decisions which establish the doctrine that the plaintiff may recover for any amount paid by the surety before trial, necessarily imply that in case of no such payment, nominal damages may be recovered. Otherwise no action could be maintained unless payment had been made befoi’e suit; inasmuch as there must have been cause of action at its commencement; and so the doctrine is assumed to be in the cases cited.
As there is no provision for judgment in this case, no further direction is necessary, but the cause must be retained for farther proceedings.