Philbrick v. Shaw

61 N.H. 356

• Court: Supreme Court of New Hampshire
• Decided: December 5, 1881
• Status: Published

Opinion

Blodgett, J.

The contention of the defendant is, that there is no privity of contract or obligation between the plaintiff and himself; that the condition of his bond was to save Haynes harmless, and not his sureties; and that inasmuch as neither Haynes nor his estate has sustained any loss, the contingency upon which the obligation depended has not happened, and there has consequently been no breach of the bond.

This defence is both ingenious and novel, but it has no foundation in principle or upon authority. The right of subrogation does not rest upon contract or privity, but depends upon principles of natural justice and equity, and will be applied in favor of one who has been compelled to perform the obligations of another. Sheld. Sub., ss. 3, 93, and authorities cited. Nor was the defendant’s bond for the protection of Haynes alone. His sureties were responsible for his official conduct, and equally liable with him to make compensation to any injured party for his wrongful acts. His protection was their protection; and as both stood upon a common ground of interest in respect to the bond, it is to be regarded in equity as intended for the joint benefit of both, and as now held by the administrator of Haynes in trust for the plaintiff surety.

But even if it was intended for the sole benefit of Haynes, Phil-brick, having performed the obligations resulting from Haynes’s default, which the defendant occasioned, and from which he derived a substantial benefit, is entitled to be subrogated to all the rights Haynes had, or would have had if living, against the defendant, and may therefore resort to the bond as a means of reimbursement. Brinson v. Thomas, 2 Jones Eq. 414; Blalock v. Peake, 3 Jones Eq. 323; Miller v. Sawyer, 30 Vt. 412; Skiff v. Cross, 21 Iowa 459; Lewis v. Palmer, 28 N. Y. 271; R. R. Co. v. Trimble, 51 Md. 99; Sheld. Sub., ss. 86, 87, and authorities cited; 5 Wait Act. and Def. 213.

The right of subrogation exists where, from all the circumstances of the case, it ought in equity and good conscience to exist. Mower’s Appeal, 56 Penn. St. 76; Shotwell v. Ins. Co., 5 Bosw. 263; Kernochan v. Ins. Co., 17 N. Y. 428; Goswiler’s Estate, 3 P. & W. 200. This is such a case.

Demurrer overruled, and, case discharged.

Stanley, J., did not sit: the others concurred.