Currier v. Fellows, 27 N.H. 366

Gilchrist, C. J. Before the year, 1846, Pingree, being in business as a tanner, Currier used to aid him, by giving his own notes for him. Pingree sold his leather to Fellows, and with the proceeds paid Currier’s liabilities for him. For a while he made out his bills to Fellows in his own name, and then, with Currier’s assent, he made them out in Currier’s name, but told Fellows that Currier had no interest in them. He then again made the bills in his own name; but in Boston hides were bought in Currier’s name, and Currier’s notes given for them until November, 1848.

Pingree, wishing to raise money, Currier said he would aid him in making an accommodation note, if Fellows would sign a note of that kind. Fellows drew up a note to Currier for $500, and Pingree signed it. Fellows indorsed it, “ waiving demand and notice.” Currier then wrote his name above that of Fellows, got the note discounted at the Derry Bank, and paid the money to Pingree, who applied most of it to pay notes, given by Currier, in Boston, for his benefit, and used the rest of it.

Where the defendant placed his name on the back of a note, at the time it was made, payable to the plaintiffs, but not endorsed by them, it was held that he was liable as an original promiser and not as an indorser. Martin v. Boyd, 11 N. H. Rep. 385. In that case there was no evidence offered but the signature on the back of the note, to show the intent of the parties. Here the intent is obvious. The note was an accommodation note for the benefit of Pingree. This is clearly apparent from the case, and all the parties must have so understood it.

The object of Currier and Fellows was to become sureties for Pingree in some form, and thus aid him to raise money. The same point was decided in Austin v. Boyd, 24 Pick. 67. There Morton, J. says that “ the apparent effect of putting the plaintiff’s name over the defendant’s, would be to change the character of the contract, to convert an original promiser into a second indorser, and to discharge the defendant from all liability to the plaintiff.” That was not an accommodation note, but for a debt due to the plaintiff. The plaintiff has paid the note to the bank.

But he had the benefit of most of the money, by Pingree’s applying it on debts for which Currier was liable. He and Fellows were, in fact, joint sureties for Pingree, and he should recover of the defendant one half of the sum he has paid. But the plaintiff had security on certain property, by way of mortgage. His co-surety is entitled to an equal benefit in that with him. If he has suffered Pingree to dispose of it, still he should account for it to the co-surety, and also for the value of the rest of it.

From the sum the plaintiff is entitled to recover, there should be deducted whatever sum he has received, or could realize from the mortgaged property. A surety is entitled to the benefit of any security which a co-surety has. Low v. Smart, 5 N. H. Rep. 353. Where joint promisers or co-sureties have received equal benefits, or have been relieved from common burthens, no one can recover of another man more than the excess he has paid beyond his share. Fletcher v. Grover, 11 N. H. Rep. 368; Boardman v. Paige, 11 N. H. Rep. 431.

With the limitation above mentioned, there should, therefore, be Judgment for the plaintiff