City of Deering v. Moore , 86 Me. 181 ( 1893 )

Haskell, J.

Debt by an obligee against a surety upon two bonds, given by a collector of taxes for the years, 1884 and 1885, respectively. The last bond was not signed by the principal. Each surety bound himself severally, and not jointly, in the sum of $5000. The obligee received from two sureties a sum of money, "in full discharge from liability upon each bond.” Two questions are presented :

I. Did the failure of the principal to sign the last bond render it void? We think not. The bond was conditioned that the principal should faithfully perform official duty. This he was bound by law to do, just as effectually as if he had covenanted to do it by signing the bond. The engagement of the surety, therefore, rested upon the legal obligation of the principal already incurred. It is not like the cases, often referred to, where no obligation attaches to the principal, outside of the bond itself. In those cases, the principal not being bound, it would be unjust to hold the surety. Nor is it like the case of bail, where the sureties have peculiar rights flowing from the stipulation agreed to by the principal. The bond must be held good at common law. Howard v. Brown, 21 Maine, 385 ; Scarborough v. Parker, 53 Maine, 252 ; Goodyear Co. v. Bacon, 148 Mass. 542.

II. Did the discharge of two sureties release the defendant, another surety? No. The defendant was one of six sureties, who bound themselves severally and not jointly, each in the sum of $5000. Their relations to each other are precisely the same as if each one had executed a separate bond. They are neither necessarily joint debtors, nor joint sureties. Had the principal executed the bond, he would have bound himself in the sum of $30,000. The sureties, instead of standing in jointly for that amount, divided it equally among them, and each one became severally bound for his aliquot share. They are sureties for the principal, and may or may not be called upon to bear a common burden, as circumstances may require. If they are, (that is, if the whole liability be less than the aggregate amount assumed by all of them, it becomes a common burden, not by reason of any contract or engagement do indemnify each other, but on the principle of equity, that a common burden shall be equally borne by all,) they become co-sureties, and stand in relation to each other as joint debtoi's, and are bound to contribute to each other, so that they shall all fare alike. In cases of this sort, of course, none can be charged beyond the amount that he has stipulated for. Warner v. Morrison, 3 Allen, 567. It follows, therefore, that the release of one would work the release of all. That is based upon the presumption of payment, the seal being conclusive evidence of complete and ample consideration. To work the discharge of a debtor, the agreement must be made upon sufficient consideration, and that pays the debt. At common law, the part payment of a debt is not sufficient consideration for its discharge. Bailey v. Day, 26 Maine, 88 ; Potter v. Green, 6 Allen, 442. If the discharge be by a sealed instrument, it is of no consequence what the actual consideration may be, for the seal is conclusive evidence of sufficient consideration. By the statute of this State, passed in 1851, c. 213, R. S., c. 82, § 45, the settlement of a demand upon the receipt of money or other valuable consideration, however small, will bar an action upon it. It should be observed that the demand must be settled, in order to effectuate that result. The discharge of a debtor from liability upon a demand that is to remain outstanding will not so operate. This distinction applies where one or two joint debtors is discharged upon the consideration of part payment, leaving the demand outstanding against the other. Such discharge will not bar an action against both; nor can it be pleaded by the other in an action against him, if the liability be several. Bank v. Marshall, 73 Maine, 79 ; Drinkwater v. Jordan, 46 Maine, 432 ; McAllester v. Sprague, 34 Maine, 296.

In the case at bar, the attempted discharge of some of the sureties is not pretended to have been by a sealed instrument. Had it been, it would have worked a discharge of all the sureties, for they stand in the relation to each other of joint debtors, being co-sureties for the payment of the same debt. Nor does it pretend to have discharged the whole debt, as provided for by statute. It simply presumes to discharge some sureties from a liability or debt that was to remain outstanding, and, therefore, not being upon sufficient consideration that would have paid the debt, or so much of it as they had engaged to pay by their covenant, nor evidenced by a sealed instrument, it was ineffectual to discharge any one.

The result is, damages upon the last bond should be assessed in a sum equal to the existing default of the principal, with interest from the time it accrued, leaving the defendant to such claims for contribution as shall prove just.

Defendant defaulted. Damages to be assessed below.