Carpenter v. Kelly
Ohio Supreme Court
Error to the Common Pleas of Delaware. The suit below was by Kelly against Carpenter and his co-security for Thorpe, for a contribution. The plaintiff proved the giving of a note by W. and A. Thorpe, and the defendant and himself as sureties, for fifteen hundred dollars, which the plaintiff had paid, and that the Thorpes were compounding their debts by paying and securing fifty cents on the dollar.
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Error to the Common Pleas of Delaware. The suit below was by Kelly against Carpenter and his co-security for Thorpe, for a contribution. The plaintiff proved the giving of a note by W. and A. Thorpe, and the defendant and himself as sureties, for fifteen hundred dollars, which the plaintiff had paid, and that the Thorpes were compounding their debts by paying and securing fifty cents on the dollar. In defence it was shown, that soon after the debt was contracted, the Thorpes placed in the hands of Kelly, as security for his liability, certain notes against Leonard and others; that on Kelly’s…
1Opinion of the Court
By the Court,
Lane, 0. J.
The first question in this caséis, whether a surety, who has received securities from his principal, and who in good faith has exchanged them for others, without the consent of his co-surety, thereby discharges him from contribution ? A surety is not bound by law to seek indemnity; yet if the means of indemnity are placed-in his hands, and he undertakes to. retain them, he becomes a trustee for his co-sureties, because they enure to their common benefit, ■and he is bound by the obligations which attach to a trustee to use honesty, good faith, and due discretion, in…
2Cited by2 opinions
- Wood v. PerrySupreme Court of Iowa · 1859
- McAdams v. DunsonOhio Court of Appeals · 1915