Lord v. Tiffany

The defendant, Tiffany, commenced two actions, one against Hezekiah B. Lord, alleging in substance that on the 31st day of January, 1870, Lord, in behalf of himself and one Josiah St. John, set in motion in the Marine Court, attachment proceedings for the collection of a debt of $60, by virtue of which the canal boat “ Stab Merry ” and its tackle, etc., his property, were taken from him, the other against Josiah St. John, alleging similar proceedings in favor of himself and one Hezekiah B. Lord, for the collection of a debt of $60, with like consequences. It is not denied that there was but one debt, one canal boat with its tackle, one defendant, and it is found by the trial court upon evidence quite sufficient to warrant it, that Lord and St. John were at these times partners, and that the acts complained of in the two suits occurred while they were making efforts, as they supposed, in a legal manner, to collect that debt. Tiffany succeeded, however, in each suit, recovering in the first, damage, for conversion in taking the boat under the attachment, which with costs amounted to $2,465.28, and in the other, including costs $2,824.71, for conversion in selling the boat on execution, the property in the mean time not having been returned to Tiffany, nor the first conversion cured. The attachment and execution were proceedings in the same action, and the two conversions were part of the same transaction in which both St. John and Lord were engaged. Each judgment was appealed from, and affirmed by the General Term ( 5 Lans. 153 ), and the Commission of Appeals (65 E. Y. 310, 314), and in due course, Tiffany had judgment against Lord for costs of appeal to the General Term, July 11, 1872, for costs in Court of Appeals May 19, 1875, against St. John for costs in the General Term July 5,1871, and in the Court of Appeals May 19,1875. He also sued upon the undertakings given on these various appeals, and recovered judgment against Banks and Ellis, sureties, on Lord’s appeal to the General Term Eovember 29, 1875, for

In March, 1876 (as the trial court found), Smith, one of the above-named sureties, paid Tiffany on the judgments against him, the sum of $4,077.90, at the same time agreeing that this payment should not affect the right of Tiffany to collect all his judgments against the other parties. Tiffany also agreed to, and did release Smith separately from the judgments against him, and Smith agreed to and did assign to Tiffany all his rights or claim against St. John or Gilmartin by reason of such payment. The trial court fixed the amount which, with that paid by Smith, would satisfy the damages in one and the costs in all the actions, and directed judgment that upon payment of that amount, the judgments against Lord and the sureties upon the undertakings given by him be discharged, that Tiffany be enjoined and restrained from collecting any more thereon, and that Gilmartin as surety with Smith have judgment releasing him from one-lialf of the judgment- and restraining the collection of more than one-half from him. Judgment was entered accordingly.

The effect of this payment is the- important question in dispute. We concur, however, with the court below in the opinion that the appellant’s contention in regard to it is altogether wrong. A variety of cases have been cited by him, but they are all within the rule which requires each surety to contribute to the debt, whether they are bound by separate instruments or not, and whether the number is more or less, for the maxim that equality is equity furnishes the principle which operates in either case. The creditor, "therefore, who can call upon all is not at liberty to fix one with payment of the whole debt. This is precisely what the appellant seeks to do in this case. One surety has paid an amount nearly equal to the whole judgment against him and his co-surety, and enough with the

It is a well-settled rule that a surety is entitled to the benefit of any security taken by the creditor, and it applies also to money received by him from a person who would not have paid it, or who could not have been compelled to pay it if he had not sustained that relation. Here the contract between Tiffany and Smith recites the existence of that relation, describes the judgments already referred to, and states as the ground of contention between the parties, a difference of opinion as to the amount which Tiffany js entitled to recover — whether the larger judgment or both judgments. The subject of the transaction was the liability of Smith as surety, and because he was surety he paid the money. . It was not in his power to restrain the application which the law made with, or without, his assent. As to it he had no option, and over it he could have no control. But again, by the same instrument, Smith assigned to Tiffany all claims against St. John (his principal) and G-ilmartin (his co-surety) which he might have by reason of that payment. He could have npne, except it applied for their benefit. As surety Smith was bound to pay. The amoun, paid was not in excess of his undertaking, and neither directly, nor indirectly, by his own act or in conjunction with the creditor, could he keep the judgment alive in order to coerce payment from his co-surety, or in any other way qualify the effect of his payment to the prejudice of the other surety. It

It is argued that the court below took no account of the sum of $99.66 costs, it is said, of dismissal of one appeal. It does not appear that the attention of the trial court was called to it in any way, and if there be an error in that respect, the means are not before us for its correction. A case was made for equitable relief. The plaintiff in these various judgments insisted upon payment according to their terms, refusing even to apply upon them the money received from Smith. The parties interested were numerous, their rights not the same, and while it is possible the questions might have been disposed of upon motion, it was at least discretionary with the Supreme Court to entertain the action, and their determination is not the subject of review. But we think a court of equity cannot greatly err in putting an end to unnecessary suits, even against trespassers or their sureties, when its interference is invoked with an offer of full satisfaction, and the circumstances are such that the remedy at law is either inadequate or doubtful; more especially is this so when, as condition of relief, it requires payment to the other party of all damages sustained by him, with costs and increase, thus ending litigation, and at the same time exacting justice. Such, as we understand the record, is the case here.

We find no question which was left unexamined by the learned judges at Special or General Terms, nor any point

We think the appeal wholly fails, and that the judgment of the court below should be affirmed.

All concur.

Judgment affirmed.