Commonwealth v. Brown , 17 Pa. Super. 520 ( 1901 )

Opinion by

Beaver, J.,

The obligation assumed by the surety upon an assignee’s bond is an agreement oh his part that the assignee will “ faithfully execute the trust confided to him.” This is unquestionably in the nature of a contract and is so regarded by the court below. Whether the promise to indemnify against contingent loss from the default of the assignee is original or collateral or whether the consideration moving the surety is between him and Ms principal or between Mm and those who are to be secured against the default of the principal by him is of little consequence in the present case. The surety contracts to hold all who are or may become interested in tho estate harmless from or by reason of the default of the assignee. Whilst it may be true, as said by the court below, that “ neither the plaintiff nor any other creditor of the assignor was a party to it nor had they any knowledge of it or anything to do with it ” in the sense that they were not present when the bond was executed and did not give conscious consent to its terms nor approval of the sureties as such, it is, nevertheless, true that they were represented in the act of approval by the court, and by that approval each and every one of them became interested in the bond and had a right to pursue each of the sureties thereto. Although not consciously assenting to the contract of suretyship made when the bond was approved, they accepted it and assented to all that was therein contained, when any of them attempted to pursue the sureties for the default of the assignee. Then, if never before, the mind of any one interested in the estate, whether as a creditor at the time or as one who rendered service subsequently, as did the use plaintiff in the present case, met the mind of the surety, and the contract became in all respects complete. The liability of the surety depended upon a contingency and the right to use the bond for the purpose of securing compensation for Ms services by the plaintiff was also contingent upon the failure of the assignee to make proper compensation for the services to which he was entitled, but, when the contingency happened and the use plaintiff endeavored to use the bond, all the elements of a complete contract were present and the rules which govern in the enforcement of ordmary contracts would apply.

This being so, we are at a loss to understand why the surety in tMs case, who claimed the benefit of the Act of April 9, 1849, P. L. 533, exempting property to the value of |300 from levy and sale on execution, issued upon any judgment obtained upon contract, and distress for rent, should not be allowed to make good his claim. The court below properly distinguished between the assignee himself and his surety and said: “ The assignee could not have claimed the benefit of the exemption law, if the execution had been issued against him, although that of itself might not control the question of the right of a surety to do so.” The distinction thus intimated rests upon substantial grounds. The default of the assignee is in the nature of a tort and, if there be bad faith on his part, this of itself would deprive him of the benefits of the exemption act. The surety, however, does not stand in the same relation to creditors of the assigned estate and, although called upon to make good the default of another arising out of a presumable breach of faith, he is not in anywise tainted therewith and should not be visited with any of the penalties which may justly be imposed upon the assignee,.

Reduced to its last analysis, the use plaintiff brings his suit against the surety of the assignee for services rendered in the matter of the assigned estate, after the bond was given. Admit that the services were rendered upon the faith of the bond. If so, the contract was made when the services were rendered and this would be the legal presumption; but, even if there were no conscious acceptance of the appellant’s suretyship at that time, the contract surely became in every sense complete, when he attempted to enforce the provisions of the bond. We are, therefore, of opinion that the appellant was legally entitled to the benefit of the exemption law and the appraisement made by the sheriff, if in other respects regular and unexceptionable, should have been confirmed. The decree of the court below, setting aside the appraisement of personal property set apart for John Dorn, the appellant, is, therefore, reversed and a procedendo awarded.

Orlady, J., dissents.