William T. Seely's Adm'r v. Beck

• Decision Date: 31 January 1868
• Citation: 42 Mo. 143
• Parties: WILLIAM T. SEELY'S ADM'R, Plaintiff in Error, v. JAMES P. BECK, Defendant in Error.
• Court: Missouri Supreme Court

42 Mo. 143

WILLIAM T. SEELY'S ADM'R, Plaintiff in Error,

v.JAMES P. BECK, Defendant in Error.

Supreme Court of Missouri.

January Term, 1868.

Error to Fourth District Court.

Adams, for plaintiff in error.

I. On principles of equity, independent of contract, the appellant, although ostensibly a surety for Warfield, was, as between himself and the other sureties, a principal, so far as the administration of the Beck estate was concerned. Whether a party to an obligation is a mere surety or a principal, depends upon the question whether such obligation was made for his benefit. In this case, the two official bonds were made for the joint benefit of the appellant and Warfield. They were made expressly for the purpose of administering the Beck estate, and in order that the appellant might administer them in the name of Warfield as public administrator, and thereby receive two-thirds of the profits or commissions to be allowed in the name of Warfield. These facts constitute the appellant a principal as between himself and the other sureties. (See 1 Story on Eq. §§ 493-498; McPherson v. Talbott, 10 Gill. & John. 499; Mayhew v. Crockett, 2 Swanst. 193; Turner v. Davis, 2 Esp. 478; Deering v. Earl of Winchelsea, Cox Ch. 318, and 2 Bos. & Pul. 270; Sterling v. Forrester, 3 Bligh, 575-596; Craythorne v. Swinburne, 14 Ves. 159; Onge v. Truelock, 2 Mol. 31; Copis v. Middleton, 1 Turn. & Russ. 224; Hodgson v. Shaw, 3 My. & Keen, 191; ex parte Gifford, 6 Ves. 805; Campbell v. Mesier, 4 Johns. Ch. R. 334-338; Higgins v. Dellinger, 22 Mo. 397; Rice v. Morton, 19 Mo. 285.)

II. As the bonds were made for the benefit of the appellant, if he had paid the whole deficit he could not have demanded contribution from the respondent or the other sureties. As this could not be done, by parity of reason, he must save them harmless from the results of an obligation made for his own benefit. (See the authorities above cited.)

Prewitt, for defendant in error.

I. This is not a question of contribution between sureties. There is no allegation in plaintiff's petition that defendant had not contributed his share, or that he had received any indemnity which he was bound to share with his co-securities. The contract arising from the bond is expressly a contract of co-securityship. If defendant, then, is liable as principal, it must be by virtue of some act or contract outside of the bond, raising an obligation contrary to and in contravention of that raised by the express terms of the bond. If defendant had agreed to indemnify plaintiff's intestate, he would be liable to him whether defendant signed the bond or not, and not because he signed the bond; and if he received any property from Warfield, to hold for the benefit of Seely, he would be liable for it whether he signed the bond or not; but there is no allegation of either of these facts in plaintiff's petition. The agreement does not make him a partner of Warfield, or a principal in the contract in any way, but only an agent of Warfield, acting under his directions and receiving part of Warfield's commission for his compensation. (Burckle v. Eckhart, 1 Den. 337; Berthold et al. v. Goldsmith, 24 How. 526; Blake v. Cole, 22 Pick. 97; Bradley v. White, 10 Met. 303; Denny v. Cabot, 6 Met. 82; Vanderburgh v. Hull, 20 Wend. 70; Tom v. Goodrich, 2 Johns. 218.)

II. The law of contribution does not make a co-surety a principal because he receives an indemnity from his principal; it only requires him to hold it for their joint benefit. (Lead. Cas. in Eq. 119; 1 Story on Eq. 574, § 499; Moore v. Moore, 4 Hawks, 358; Carpenter v. Kelley, 9 Ohio, 106; Agnew v. Bell, 4 Watts, 31.)

WAGNER, Judge, delivered the opinion of the court.

This was an action in the nature of a bill in equity, brought by the plaintiff as administrator of Seely, to recover a sum of money alleged to have been paid by Seely as surety for the defendant.

It seems that Elisha N. Warfield, who was public administrator of Cooper county, administered on the estates of Preston Beck, Jr., and J. J. Beck; that the defendant was entitled by law to administer on said estates, but that he voluntarily waived that right and agreed to let Warfield take charge of the same. The Probate Court of Cooper county required Warfield to give an additional bond in each estate before it would allow him to administer on and take charge of the assets. Seely and Jas. P. Beck, with others, signed these bonds, as securities. Prior to the execution of the bonds, Beck, the defendant, and Warfield entered into an agreement reciting that Beck was entitled to administer on the estates by law, but that he was willing the estates should be administered on by Warfield as public administrator.

It was then further agreed between the parties that Beck should do all he could, under the directions of Warfield, to aid him in the administration of the estates, and assist, under his instructions, in loaning or distributing the assets under the order of the Probate Court. And Warfield agreed to appoint, and did appoint, Beck his agent in Missouri, to receive and distribute the moneys that might be sent from New Mexico, belonging to the estate of P. Beck, Jr., for which services he was to be paid a reasonable commission. Warfield was to charge for his services as administrator the usual commissions; out of which, after the payment of all such expenses as were not otherwise allowed by the Probate Court, he was to allow and pay Beck for his services two-thirds of the commissions, and retain one-third for himself.

Warfield, after administering on the estates, became insolvent, and was a defaulter to a considerable...