Wilson v. Wheeler

29 Vt. 484

Opinion

The opinion of the court was delivered by

Redfield, Ch. J.

No question is made in regard to the binding character of the contract for delay of payment, or but the defense may be made available to one defendant under the statute, and not to the others.

The only question made is whether Webster is entitled to be treated as a surety.

While he held the mo.ney he clearly could not be allowed to claim the protection of the privileges of a surety, but after he gave it up to the principal defendants, he must be regarded the same as if he had never retained it, perhaps, and especially as this was a mere temporary arrangement, until the security first agreed could be procured.

The case must stand upon the effect of Mrs. Harrington’s indemnity to Webster. And we think this is not to have the 'effect which money, or its equivalent deposited, would have. For Mrs. H. and Webster, taken together, are merely sureties, and the agreement among themselves that one shall indemnify the other, will not deprive them of any defense they could make without such agreement. Nor will the fact that Mrs. H. did not sign the note make any difference. We think they may insist the plaintiff released them by contracting with the principals to delay payment.

Judgment affirmed.