Morrison v. Cassell

25 Ill. 368

• Court: Illinois Supreme Court
• Decided: January 15, 1861
• Status: Published

Opinion

Walker, J.

The money was in the first place loaned by McConnel either to Truog or to the firm. If loaned for the use of Truog, then he was liable as principal debtor; if to the firm, then Truog and Selby were the principal debtors. Cassell and Jordan in either event were only sureties, but when they had borrowed the money of Smith, and paid the debt to McConnel, they became creditors of Truog or of the firm, and were as to them substituted to the rights of McConnel. When Truog paid that money to Smith, he thereby released and discharged Cassell and Jordan from all further liability, and terminated their connection with the transaction. There is no doubt that Truog was a principal debtor, and whether as an individual, or as a member of the firm, could make no difference, as in either event, the sureties had a right to insist that he should protect them from loss. If they with Selby became his sureties, he discharged his duty to them by paying the debt, and if it was a firm debt, he did no more; and when the debt was paid and the sureties discharged, they having paid nothing that has not been fully refunded, they can in no way have any claim against the firm or either of its members, and therefore have no right to participate in the disposition of the assets. As the debt has been discharged by one of the principal debtors, and as the sureties have paid nothing, and do not owe anything to McConnel, to Smith, or to any other person, on account of this transaction, they can have no legal or equitable right to claim anything, either from Truog, Selby or the firm, for the benefit of themselves or any other person.

The decree of the court below is reversed, and the cause remanded, with directions that the court enter a decree dismissing the bill.

Decree reversed.