33 W. Va. 267 | W. Va. | 1889
Action of assumpsit in the Circuit Court of Barbour county, brought by Chester W. Proudfoot in his individual right against John C. Clevenger, in which there was a jurj7, a demurrer to the evidence by defendant, a verdict finding for the plaintiff $872.52, subject to such demurrer, a judgment upon such demurrer for the plaintiff against the defendant for that amount, and a writ of error sued out by defendant, Clevenger.
It is urged by appellee’s counsel that as no motion to set aside the verdict and grant a new trial was made in the trial- • court, the appellant can not have his demurrer to the eviT
The reason given for the position held in State v. Phares is that the party who complained of the rulings, by not asking a new trial, waived his- exception; that, if he had insisted upon it by asking a new trial,' the error might have been cured by granting a new trial; but in a case of demurrer to evidence it can not be so said, for by averring, as he does by his demurrer, that the evidence will not sustain his adversary’s action or defence, he certainly does that which, had there been no demurrer, but a verdict, is equivalent to saying that the evidence is insufficient, and therefore a new trial is asked. Therefore this doctrine obviously does not apply to a case decided upon a demurrer to evidence. The casé of Riddle v. Core, supra, and Humphrey v. West, 3 Rand. (Va.) 516, on which the'doctrine contended for is largely based, were both cases of demurrer to evidence ; but note that in them the ground of complaint was excessive damages, and where, though the case be decided on a demurrer to evidence, the party complains of excessive damages, he must ask a new trial below, for there is no reason why in that case the rule above adverted to should not apply.
Considering, then, the demurrer to evidence, was the case
It can not be said that Clevenger, by paying the balance left of the note after crediting payments so made by Proud-foot, adopted and ratified such-payments, and thus became liable to refund; for it does not appear that he knew who had made the payments. The bank wrote him for payment in one letter, saying the note was subject to two credits, amounting to $1,444.70, without further explanation, and in the other letter simply saying there was a certain balance due, and he sent his son and paid it. But suppose he knew that Proudfoot, as administrator, had paid them. The pay
But there is another forcible fact against the plaintiff. When Corder died he had on deposit in the Banners’ Bank of Phillippi $2,000.00, and Proudfoot, as administrator, drew a check on this fund payable to the cashier of the Birst National Bank of- Grafton for $1,030.00, to be applied on said note. Thus he used the funds of the estate in paying, and of this there is no dispute. And thus the assets discharged the debt fro tanto, and it was thereafter only a question between the administrator and creditors as to the proper application of its assets; certainly not between him and Cleven-ger, the surety. Certainly a surety can take the benefit of assets actually applied on the debt for which he is bound, though other creditors might Suffer, or the administrator be liable to them for misappropriation, or though the particular creditor might have to refund. He can not claim that he was materially mistaken as to the solvency of the estate, for his own evidence s]aows that when he made the first payment he expected it would pay fifty per cent, on its debts only. So he was not materially mistaken as to that, as it did pay 44.47 per cent. But he had means to know as to the assets, and any mistake would not charge a surety to refund after his principal’s actual assets had made a payment. Shriver v. Garrison, 30 W. Va. 456 (4 S. E. Rep. 660.) There overpayment tó a legatee could not be recovered. A surety certainly would stand in as good a plight. We think that the case decided by the Supreme Court of Massachusetts (Paine v. Drury, 19 Pick. 400) holds correct doctrine, namely:
“ Where an executor, supposing the estate of his testator to be solvent, paid in full a debt due from the estate, it was held that he could not, upon such estate proving to be insol*271 vent, recover any portion of the sum so paid from a surety of the testator, it not having been paid at the request of the surety, although, if the executor had not paid it, the surety would have been compelled to do so, and would have had his remedy over against the estate for a dividend only.”
Here the administrator was not materially mistaken as. to the estate’s insolvency hut as to the fact that he was not a surety. He ought to have known as to that, and, even if he had not paid assets of the estate, he could not for this mistake hold the surety responsible, even if he could hold the creditor. Lewellen v. Garrett, cited by appellee, 58 Ind. 442, was simply where a party paid a note under the mistaken belief that he had executed it, and was allowed to recover it back — that is, of the creditor; but that does not apply to show that he could have recovered of a surety. “ Sureties are never held responsible beyond the clear and absolute terms and meaning of their undertakings, and presumptions and equities are never allowed to enlarge or in any degree to change their legal obligations.” Opinion, Bank v. Good, 21 W. Va. 464. A surety is a favorite of the law, and a claim against him is strictissimi juris. Brandt, Sur. § 79. Even where an executor, in ignorance of the true state of assets, is under a mistake as to their sufficiency, he can not recover a payment made to a legetee. Shriver v. Garrison, 30 W. Va. 456, (4 S. E. Rep. 660.)
The judgment of the Circuit Court is reversed, with costs to appellant, and this Court, now rendering such judgment as that Court should have rendered, is of opinion that the law upon the demurrer to the evidence is for the defendant, and sustains the same; and it is therefore considered that the plaintiff take nothing by his suit, and that the defendant recover of the plaintiff his costs in his defence in the Circuit Court expended.
REVERSED.