In re Wm. H. Blumer & Co.

13 F. 623, 1882 U.S. Dist. LEXIS 172

Opinion

Butler, D. J.

The question raised is one of construction. If the transaction with the five co-sureties was intended to be a discharge of the original obligation, no recovery can now be sustained against the estates of Line and Kern; or if it was intended as a discharge of the five co-sureties from the obligation, Line’s and Kern’s estates can only be looked to for two-sevenths of the deficiency. If, on the other hand, the transaction was intended as a conditional discharge only, —the obligation to remain in force until Blumer’s default was made good,—it had no effect whatever upon the city’s rights against Line and Kern. The rule of law applicable is plain, and no authorities need be cited.

In my judgment, the latter view of the transaction is the only one justified by the evidence. The city was careful to reserve its rights under the original bond—stipulating in plain terms that the obligation shall continue in force. Of course, if. the new bonds had been paid, and the claim of the city had been thus satisfied, the original obligation would have been discharged. But until this should be done the original obligation was to continue in force. Nothing has occurred to interfere with Messrs. Line’s and Kern’s right to contribution for what they may pay beyond their just proportions.

The exception must therefore be dismissed.