Gawthrop Co. v. Fibre Specialty Co.
Gawthrop Co. v. Fibre Specialty Co.
Opinion of the Court
Opinion by
This is a question of distribution in an insolvent estate. On April 28,1913, receivers were appointed for the Fibre Specialty Company, a corporation. Prior thereto, on. July 23, 1912, the company for value gave George W. Taft a demand note for $5,000. J. W. Brainard was official treasurer of the company; and in 1903 gave a bond in $5,000, with Taft and James W. Worrall (now deceased) as sureties, conditioned for the faithful performance of his duties as such treasurer. June 26, 1913, Mr.
After the award of the dividend to Chalfant on the Taft note, the claim against Brainard and his sureties on the bond having been brought to the attention of the court below, it was there ordered that the dividend be retained by the receivers until the final determination of the action on the bond, which was done. The receivers in a subsequent final account charged themselves with the $2,157.15 dividend, which the auditor thereafter awarded appellants by way of contribution from Taft as their cosurety. The learned court below sustained exceptions to the auditor’s report, and by final decree ordered the dividend paid to Chalfant on the Taft note. And from that decree this appeal was taken. The $5,000 note was a matter entirely separate and apart from the treasurer’s bond and had no connection with Mr. Brainard or Ms account with the company. Appellant’s right to contribution or subrogation arose when they paid the judgment. Then they were equitably entitled to an assignment of the judgment, and also of any collateral or other property held by the receivers to secure the payment of the bond. But they were not entitled to the divi
^ It is not easy to see how appellants can secure preference over other creditors whose claims were in existence at the time of the assignment; for as a general rule the rights of creditors are fixed as of that date: Sweatman’s App., 150 Pa. 369; Jamison & Co.’s Assigned Est., 163 Pa. 143; Potter v. Gilbert, 177 Pa. 159; Chestnut Street Trust & Saving Fund Co.’s Assigned Estate, 217 Pa. 151. Except as to rights,and property connected with the transaction, the claim of a cosurety for contribution is no higher than that of any other claim, and subrogation, which is fotinded upon equity and benevolence, will never be granted to the prejudice of other rights of equal or higher rank: Fritch v. Citizens’ Bank, 191 Pa. 283; Knouf’s App., 91 Pa. 78; Grand Council of Penna. Royal Arcanum v. Cornelius, 198 Pa. 46; Shimp’s Assigned Est., 197 Pa. 128. Claims against an insolvent estate which were in existence at date of the assignment, would seem at least to have as strong an equity as one thereafter arising, even though the obligation out of which it arose antedated the. assignment. “It is not a liability to pay, but actual ■ payment to the creditor, which raises the equitable right to be subrogated to his remedies”: Kyner v. Kyner, 6 Watts 221; Hoover v. Epler, 52 Pa. 522; Forest Oil Company’s Appeals, 118 Pa. 138. Subrogation will never be enforced to defeat a superior or even an equal equity: Robeson’s App., 117 Pa. 633. A case quite similar to this in principle is that of Farmers & Drovers’ Bank v. Sherley et al., 75 Ky. 304,
Where the lower court makes a general decree sustaining exceptions to an auditor’s report, and the controlling exceptions are well taken, and the right decree is entered, an appellate court will not reverse because such general decree seemingly sustains some minor exceptions that were not well founded; nor because of minor inaccuracies in the opinion filed with the decree. However, the opinion in this case indicates a correct understanding of the facts and legal principles applicable thereto'.
The decree is affirmed at the costs of appellants.
Reference
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- Gawthrop Company v. Fibre Specialty Company
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- Syllabus
- Suretyship —Default of principal — Payment by one surety — Subrogation — Contribution—Preferences. 1. Except as to rights and property connected with the surety-ship obligation, the claim of a cosurety for contribution is no higher than that of any other claim, and subrogation, which is founded upon equity and benevolence, will never be granted- to the prejudice of other rights of equal or higher rank. 2. It is not the liability to pay but actual payment to the creditor which raises the equitable right in a surety to be subrogated to his cosurety’s remedies. 3. Claims against an insolvent estate which were in existence at. the date of an assignment for the benefit of creditors have at least as strong an equity as one thereafter arising, even though the obligation out of which the latter aróse antedated the assignment. 4. One of two sureties on the bond of a treasurer of a corporation made a loan of $5,000 to the corporation on the latter’s note. Subsequently such surety made an assignment of his property, including the $5,000 note, to a trustee for the benefit of his creditors. A receiver, appointed for the corporation, filed an account and an auditor was appointed to make distribution. The treasurer of the company in the meantime had defaulted and the corporation brought suit against the treasurer and his two sureties. The estate of the second surety paid the amount of the default. The executors of the second surety contended that they were entitled to be subrogated to the right of the other surety for the amount of the dividend awarded by the auditor on the $5,000 note, in preference to the other surety’s general creditors whose claims arose before the treasurer defaulted. Held, that as the dividend on the $5,000 note was an entirely separate matter from the suretyship obligation, the estate of the surety who had paid the principal debt was merely a general creditor of the other surety and had no preference in such dividend over the latter’s other creditors. Practice, Supreme Court — Appeals—Decree—Harmless error. 5. Where the lower court makes a general decree sustaining exceptions to an auditor’s report and the controlling exceptions are well taken and a proper decree is entered, a reversal will not be granted merely because the decree seemingly sustains some minor exceptions which are not well founded, or because of minor inafccuracies in the opinion filed with the decree.