Smith v. Lyford, 24 Me. 147

Smith v. Lyford

24 Me. 147 | Me. | 1844

The opinion of the Court was prepared by

Tenney J.

This is an action of assumpsit to recover the disbursements made and the services rendered by the plaintiff in defending a suit upon a note of hand given by .Lyford, as principal, and the other two defendants, as sureties. The jury have found that the sureties did not employ the plaintiff; but he insists that they are holdou by a promise implied from their being defendants in the same action with Lyford, who did employ him.

The note was sufficient evidence of indebtedness of the makers to the holder, unless some matter was shown in defence to prevent a recovery. It was also evidence of a liability of the principal to the sureties, if they should pay it, after its maturity. The relation between principal and surety is such, that if the latter will lake up the obligation, it is not in the power of the former to prevent it, and thereby cause a delay, not contemplated in the contract, and expose the surety to the risk of paying the debt, after the principal’s means of making indenmity may be diminished. The principal is under an inducement to defend a suit, which may not operate with the sureties, if lie thinks he can do it successfully. If he prevails, he is relieved from his liability to the oilier party, and also to the sureties. The sureties in any event have the security of the promise of the principal, if they pay the debt, either vol*150untarily or by compulsion. If they pay the debt, without giving him an opportunity to defend an action brought for its recovery, he may be liable therefor to them, notwithstanding he had a defence, which might prove to be perfect. For his protection, they may be willing not to take away his power of resisting the claim, by payment or suffering a judgment against themselves. But because he thinks proper to deny his obligation to fulfil the promise, which he has made, we do not perceive that a presumption is raised, that they wish to do the same. The most that can be presumed, from their silence, and omission to pay the debt is, that they interpose no objection to the denial of paymeiit on his part.'

It it contended, that the sureties having knowledge that the plaintiff was rendering services in defending the suit, and they receiving the benefit thereof, are therefore holden. This by no means follows. Their liability must depend upon the fact, whether an express promise to pay him or not was made, or whether a promise was implied by law. One -may receive very important benefit from the services of another, and be under no obligation to remunerate him therefor. Benefits derived from such services, known at the time by the one receiving them, may often be strong evidence of a promise to make compensation; but where it appears that they were rendered upon another’s credit, or other consideration, no liability is created. The instructions of the Judge to the jury were not inconsistent with established legal principles, and the

Exceptions are overruled.