Butler v. Butler's Admr.*
| Decision Date | 22 August 1873 |
| Citation | 8 W.Va. 674 |
| Court | West Virginia Supreme Court |
| Parties | Butler v. Butler's Admr.* |
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principal.
amount than he has paid for him, but is entitled to interest on that amount from the date of payment, and necessary costs.
the general rule is, that he can demand from his principal only the value of that currency at the time of payment, and the criterion of that value is the market value.
money to general creditors according to priorities, "if any there be;" not designating the creditors, the sum or pro rata sum they are entitled to, is an interlocutory order, and the court pronouncing the order has the right to retain the cause for a future direct action upon all matters that the interest and convenience of the parties, and the very justice of the case requires.
Appeal by William G. Butler from a decree of the circuit court of Jefferson county, rendered at the September term, 1871, thereof, in suit therein pending, wherein said Butler was plaintiff and Benjamin F. Harrison, Admr. of Vincent M. Butler and others were defendants.
The opinion of the Court contains a sufficient statement of the facts in the case.
The Hon.. Joseph A. Chapline, judge of said circuit court, presided at the trial below.
Charles James Faulkner, for the appellant. C. W. B. Allison, for the appellees. Moore, Judge:
The appellant, Wm. G. Butler, by his counsel, has assigned three grounds of error for the consideration of this Court, acting upon an appeal from the decree of the circuit court of Jefferson county.
First, He claims that the said circuit court, in its decree at the September term, 1871, erred in allowing to the appellant but twenty-five cents in the dollar, upon the debt paid by him as the surety of Vincent M. Butler, when, according to the commissioner's report, he had received the notes of the Valley Bank at par, to the amount of $2,297, by virtue of a sale of his wheat, made for the purpose of discharging said debt; and for the residue, $265, he gave sixty cents in the dollar.
Second. He claims that said decree is erroneous, because it was founded upon no evidence, going to show, that at the time he paid said money to the Bank, its m ket value Was but twenty-five cents in the dollar.
third. The court having, by its decree of December term, 1869, recognized his debt in full, and ordered a distribution to him of his pro rata portion, it could not, by any subsequent order, re-hear and reverse that decree, except upon petition for re-hearing, affording him a full tunity of contesting the law and facts upon which such re-hearing and reversal were asked to be made.
The repeated adjudications by the highest conrts, both at law and in equity, have established a principle, recognized by standard text writers, as founded upon reason and justice, that a surety who, without fault of his own, pays the debt of his principal, has a right to reimbursement by the principal. But the surety is not entitled to recover from the principal a greater amount than he has paid for him, because it is his duty to make the best terms he can for him;and it would be in violation of reason and justice to permit him to speculate upon the debt of his principal. Although the surety, in paying the debt, acts ex necessitate, he, nevertheless, acts in behalf of his principal, for whom he became liable, and upon the like principle of agency, in settling the debt, he cannot demand more than he has paid, with interest from the time of payment and necessary costs. There fore, if the surety pays the debt of his principal in depreciated currency, or depreciated notes of banks or other institutions, the general rule is, that he can recover only the value thereof at the time he paid the debt his principal; and the criterion is the market vaiue. Hall's Adm. v. Cresswell, 12 Gill, and John (Md.) 36; Kendrick v. Forney, 22 Gratt. 748.
Applying these principles thus understood, to the case before us, upon the first and second assignments of error; the first question that presents itself, is, in what kind of funds did the surety pay the debt of his principal? The question is answered by the statement of W. N. Craighill, late clerk of the Valley Bank, at Charlestown; also by commissioner Fayman, in his report of January 25th, 1871, that the debt was paid in " Valley Bank notes" The next question naturally follows: When was the debt paid by the surety? The record answers April 16th, 1866. What was the value of the Valley Bank notes at that time? The deposition of N. S. White, "a stockholder in the Valley Bank, and a holder of its circulation issued by the Bank of Charlestown," shows, as reported by commissioner Fayman, who accepts it as true,...
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