Southall v. Farish

Citations

• 85 Va. 403
• 1 L.R.A. 641
• 7 S.E. 534
• 1888 Va. LEXIS 47

Syllabus

<p>1. Principal and Surety—Repayment to surety.—Insolvent ba'nk holds judgments against principal and surety, and deposits of surety, on which it pays 60 per cent., but which third party had contracted to take at par. Surety pays judgments with his deposits, under agreement with principal to repay the face value of the deposits so used ;</p> <p>Held :</p> <p>Surety is entitled to receive face value of the deposits ; though the general rule is that if surety discharges the debt for less than its full amount, he can only claim against principal the sum paid. Kendrick v. Forney, 22 Gratt. 748.</p> <p>2. Idem—Nudum pactum.—Bank refused to transfer surety’s deposits to contractor for purchase thereof until the judgments were paid;</p> <p>Held:</p> <p>This fact does not make principal’s agreement to repay the amount at its face value, without consideration.</p> <p>3. Idem—Deposits as set-off.—In determining value of deposits to surety, whether or not deposits transferred by him were a valid set-off in hands ' of transferee against latter’s indebtedness to the. bank;</p> <p>Held :</p> <p>To be immaterial.</p> <p>4. Idem—Assignment to surety.—Where surety pays part of such judgment with his deposits, principal, compromising balance, may have the judgment assigned to surety for fifty cents on the dollar of the amount paid by him, though the bank pays less dividend.</p> <p>5. Idem—Usury.—Such agreement between surety and principal; Held not to be usurious.</p> <p>6. Chancery Practice—Fraud—Decree conforms to the bill.—Bill not charging fraud and specifying wherein it consists, no relief based on fraud can be had. But if that were not so, even if principal had not been told that bank had required payment of the judgments out of the deposits;</p> <p>Held:</p> <p>That fact would not render the agreement fraudulent.</p> <p>7. Principal and Surety—Protection of surety —Qucere. —Where all parties are before the court and their liabilities ascertained, a decree will be made in the f