Rapier v. Louisiana Equitable Life Insurance

57 Ala. 100 | Ala. | 1876

STONE, J.

We think the second appointment of Paine as agent of appellee, was, necessarily, a revocation of the first, or a concession that the first had terminated; and whether the terms of the second appointment varied from those of the first, or not, we do not think the sureties on the-bond given in the first appointment are bound for defaults: committed under the second.—Moore v. Madison County, 38 Ala. 670; Whitworth v. Oliver, 39 Ala. 286.

The second plea, among other things, sets up the first and second appointments, avers that the bond sued on was executed on the first appointment, and negatives any default during that term. This was a sufficient answer to the action, without inquiring into variation of the terms of the contract. ■ This ruling shows that many of the rulings on the pleadings were immaterial, and that the true inquiry is as to defaults in not paying over moneys received under the first appointment.

There are authorities which hold that in a suit on a contract that is joint, or joint and several, a promise or admission made by one obligor who is bound to indemnify or contribute to the others, will bind the others. Such was at one time the English rule, and such seems to be the rule in some of the States. — See authorities on the briefs of counsel. In Alabama the rule has long been settled the other way.—Lowther v. Chappell, 8 Ala. 353; Myatts v. Moore and Bell, 41 Ala. 222; Moore v. Lesueur, 18 Ala. 606; Fireman’s Insurance Company v. McMillan, 29 Ala. 147, 167; Fvans v. State Bank, 13 Ala. 787. This last case is directly in point. — See, also, 1 Greenl. Ev. § 187, directly in point.

The rulings of the Circuit Court, in several respects, were in conflict with the principles above declared.

Reversed and remanded.