Robinson v. Boyd

• Decision Date: 14 March 1899
• Citation: 60 Ohio St. 57,53 N.E. 494
• Parties: ROBINSON v. BOYD.
• Court: Ohio Supreme Court

53 N.E. 494

60 Ohio St. 57

ROBINSON v. BOYD.

Supreme Court of Ohio.

March 14, 1899

Error to circuit court, Seneca county.

Action by Virginia E. Boyd against J. T. Robinson and another. Judgment for plaintiff. Defendant Robinson brings error. Affirmed.

Spear J., dissenting.

Syllabus by the Court

1. Where property has been pledged as security for the debt of another, the presumption is that it was made for a sufficient consideration; and, in a suit to enforce the pledge, no consideration is required to be stated or proved, unless the want of consideration is made by answer.

2. Detriment or loss to a promisee being a sufficient consideration to support a promise, therefore, where property is pledged by one for the debt of another, the fact that the creditor, by reason of the pledge, may have been induced to forego efforts to obtain other security from his debtor, is a sufficient consideration to support the pledge.

3. To give rise to the application of the doctrine of contribution between sureties, it is not necessary that there should be privity of contract between the parties, nor that the liability of each should have been incurred at the same time. All that is required is that the debt or burden should be common to the parties, and primarily that of the same person.

4. R and F. were sureties on the bond of B. for the faithful performance of his duties as trustee of E., a nonresident minor. On final settlement in the probate court there was found due from him $2,304, which he was ordered to pay over according to law. Shortly after the minor became of age, and at her request and that of B., the wife of the latter pledged to E. a policy of insurance she held on the life of her husband, as collateral security for the amount due from B. to E. B. died, and the amount due was afterwards paid in part by the proceeds of a mortgage of indemnity held from B. by one of the sureties on the bond, and the balance, $1,311, was satisfied by the application of the money derived by E. from the policy of insurance she held in pledge. Neither of the sureties on the bond paid anything. Held, that the wife, owner of the insurance so pledged, is entitled to contribution from the sureties on the bond.

McCauley & Weller, for plaintiff in error.

Lutes & Lutes, for defendant in error.

MINSHALL, J.

The action below was a suit for contribution by one who, as surety, claimed to have paid the debt of the principal against two others, claimed to have been co-sureties. The case was submitted in the common pleas on the pleadings. The court rendered judgment in favor of the defendants, which, on error, was reversed by the circuit court, and judgment rendered in favor of the plaintiff against one of the defendants, plaintiff in error, the other being found insolvent; and this proceeding is prosecuted to reverse the judgment of the circuit court. The questions arise upon the averments of the petition, which are not controverted by the answer of either defendant, except as will be presently noted. It appears from the petition that Estella Everett was in April, 1879, a nonresident minor, possessed of property in this state; that James T. Boyd was then appointed her trustee of the property by the probate court of Seneca county, and that he, with J. T. Robinson and W. H. Free, sureties, gave bond according to law for the faithful performance of his duties; that he entered upon the performance of his trust and there came into his hands a large amount of property and, having filed his final account, the same was settled in the probate court June 5, 1888, by which there was found in his hands the sum of $2,304, which he was ordered to pay over according to law; that, after the account had been filed, Boyd in August, 1887, made and delivered to Robinson, one of the sureties, a mortgage of indemnity on certain real estate, and that afterwards, on December 29, 1888, the plaintiff, Virginia E. Boyd, to further secure the payment of the amount found due Estella Everett, who was then of age, and at the request of Boyd, who was her husband, and of Estella Everett and Robinson, assigned and delivered a policy of life insurance she then owned upon the life of her husband, to be held as collateral security for the sum due on the bond; that she received no consideration for the assignment, and that the policy was simply pledged as surety of her husband; that in June, 1889, the mortgage given Robinson was foreclosed, and the sum realized, $1,236.95, was applied in part payment of the indebtedness, leaving a balance of some $1,278 still due. Boyd died insolvent in September, 1889. Afterwards Miss Everett collected the full amount of the insurance, amounting to $1,559, and applied the sum of $1,311 to the payment of the balance due her, including interest. The plaintiff then avers the insolvency of Free, a demand on Robinson, made August 5, 1895, for contribution, and his refusal to contribute. Robinson, by answer, denied that the policy of insurance was assigned at his request or with his knowledge. Free made a like answer; neither, however, denying any other averment of the petition. Two questions arise upon the case made by the pleadings: (1) Whether there was any consideration for the pledge by the plaintiff of her policy of insurance as security for the debt of her husband, principal on the bond; (2) if so, whether she is entitled to contribution from the sureties on the bond.

1. There is no question but that, if the plaintiff was not bound in an obligation to the creditor on the bond,-if she was not obliged by the pledge of her policy to permit it to be applied in payment of the debt of her husband on the bond,-she cannot compel either of the sureties to contribute to her, simply from the fact that it was so applied. As will be hereafter seen, the right to contribution arises from the discharge by one of a burden common to himself and others. If one who discharges a debt was not bound to the creditor to do so, he has no claim against others who were bound to do so. As to such he is a mere volunteer. It is also true that there must have been some consideration for the pledge other than the execution of the bond. At the time the pledge was made, the bond had been executed, and the rights and liabilities of all the parties to it had been fixed. It was no accommodation to the husband to promise to pay the debt on the bond, or to pledge her property to secure it; for he had already obtained and enjoyed the trust, by the acceptance of his bond with the sureties on it. As to her, the execution of the bond was a past transaction, and constituted what, in law, is termed an ‘executed consideration.’ The law applicable to this view of the case is clearly stated by a very learned author: ‘Where a promise is made to pay the already existing debt of another, there must be some new consideration, or the promise will be void. The original consideration which supports the principal's contract cannot be made to operate on the new promise. Such promise is nudum pactum.’ Metc. Cont. 172. But the consideration for a promise, though generally, is not always, confined to a benefit to the promisor. Any forbearance, detriment, loss, or damage given or suffered by the promisee is a sufficient consideration to support a promise to him. Nor is it necessary that the consideration for an agreement should be adequate in value. As said by the author just referred to, ‘However slight the...