Quickel v. Henderson, 59 N.C. 286, 6 Jones Eq. 286 (1862)

June 1862 · Supreme Court of North Carolina

59 N.C. 286, 6 Jones Eq. 286

CAIPHAS QUICKEL and another against C. C. HENDERSON and others.

A bond to indemnify the surety of A against all notes, bonds, &c., signed and entered into for B, extends to notes, bonds, &c., signed and entered into for B & Oo.

This cause was removed from the Court of Equity of Lincoln county.

The testator of the plaintiffs,-Jacob Killian, was the credit- or of Barrett & Co., by a note signed by Barrett & Co., as principals, and J. A. Ramsour as surety, upon which suit was brought, judgment obtained, and execution issued against each of the partners and against the surety, and returned nul-la bona, and it was admitted that these parties were, and still are insolvent. After this note was given, to wit, in 1857, the plaintiff, Ramsour, for his indemnity against the liabilities he had incurred for E. S. Barrett,'took a penal bond in the sura of $20,000, with the other defendants, Briggs, Hoyle and Henderson, as sureties, payable to him, the said Jacob A. Ramsour, and conditioned as follows: “ Whereas, the said Jacob A. Ramsour hath heretofore bound himself by bills, bonds and notes, for the payment of various sums of money, as the security of Elisha S. Barrett, now, therefore, if the above bounden, E. S. Barrett, shall well and truly pay off and discharge each and every of the said bills, bonds and notes, in and by which the said Jacob A. Ramsour is bound, as aforesaid, for the, said E. S. Barrett, on or before the-day of 185 , or shall on or before the day aforesaid, in anywise discharge and save harmless the said Jacob Ramsour from any and all liabilities, debts, contracts or charges, for or on account of all said bills, bonds, and notes, then, the above obligation to be void, otherwise .to remain in full force.” Signed by E. S. Barrett, B. E. Briggs, C. 0. Henderson and L. A. Hoyle, with their seals affixed, and delivered to the said Ramsour. ■ •

The plaintiffs called on these obligors to indemnify Ram-sour, the obligee, by paying this note to the executor of Jacob Killian, but this was refused, on the ground, that as J. A. Ramsour is insolvent and cannot pay any thing, therefore, he cannot be damnified, and again, for that the indemnity extends only to liabilities incurred by E. S. Barrett, and not such had been incurred for E. S. Barrett & Co.- The defendants demurred, and the cause being set down for argument on the demurrer, was sent to this Court.

Fowle, for the plaintiffs.

No counsel for the defendants in this Court.

MaNLY, J.

Two grounds are relied upon to sustain the demurrer in this case.

1. That there has been no breach of the conditions of the bond by actual or probable loss on the bond of the complainant, Ramsour, and

2. That the bond is for the indemnity of Ramsour as surety of E. S. Barrett, and does not extend to cases in which Ram-sour is surety of Barrett & Co.

The first of these grounds seems to be disposed of by the case of Ferrer v. Barrett, 4 Jones’ Eq. 455, which, was a bill similar, in all respects, to the one before us, where the same ground of demurrer was taken, and after full consideration over-ruled. "We content ourselves by a reference to the reasoning in that case.

The second ground is also untenable. There is nothing in the language of the bond to restrict the indemnity to obligations in which Barrett is sole principal, and we can perceive no reason for such restriction. The individuality of co-partners is preserved and is not merged as in incorporated societies. — - Each is responsible, severally, for the debts of the company, and it is not less the debt of Barrett, nor is Ramsour less the surety, because others, beside Barrett, are responsible upon it as principals.

The demurrer is over-ruled with costs, and the usual certificate should be sent to the Court of Equity of Lincoln County-

Fee CueíAM, Demurrer over-ruled.