60 N.Y. 154 | NY | 1875
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The question is, whether a surety upon a bond, given by an assignee, under a voluntary assignment for the benefit of creditors, in pursuance of the statute (Laws of 1860, chap. 348), is liable for the default of the principal to *158
account for assets in his hands, upon judgments in favor of certain creditors, declaring the assignment void as to them, and directing the assignee to pay over the funds in his hands, to apply on the same. We concur with the court below, that the surety is not liable; and we concur substantially with the views of DANIELS, J., who delivered the opinion; and it is, therefore, unnecessary to elaborate the reasons for this conclusion. It is a familiar rule that sureties can only be charged when the case is brought within the very terms of their contract (5 Hill, 635); and that the obligation of sureties is not to be extended by construction to embrace purposes and objects not contemplated by the parties. (
The defendant contracted that De Camp should faithfully discharge his duties as assignee under the assignment. He would probably be liable, although it might appear that some of the debts provided for were paid, or were fictitious, and hence that the particular objects of payment might be varied. Such variations might well be regarded within the contemplation of the parties if the trust was valid and operative. *160
But it is sought to hold the defendant to a liability which it is impossible to presume was in the minds of the parties. It cannot be presumed that they anticipated the abrogation of the trust. The assignee, De Camp, was in effect a preferred creditor to a considerable amount, and to this extent the obligation was to secure his fidelity to himself. This circumstance serves to illustrate the nature of the contract, for the performance of which the defendant became liable; it was that De Camp should faithfully carry out the provisions of that instrument, not that he would, at any distant period, answer for the assets upon a judgment obtained annulling the assignment and holding the assignee liable to account as the wrongful possessor of property. Such a liability was not within the purview of the act of the legislature, and not within the contemplation of the parties, and is quite different from the one incurred. The error of the learned counsel for the appellant is in supposing that the statute was intended to secure an accounting by the assignee, in any event, of the assets which came to his hands, instead of a faithful discharge of duty under the assignment. These views distinguish the case from those cited. The case of People v.Vilas (
The judgment must be affirmed.
All concur.
Judgment affirmed.