
    Thomas Ferrell v. Walter C. Maxwell.
    1. A promise of indemnity by one not a party to an obligation to induce another to become surety thereon, being a promise to answer for the default of another person, if not in writing, is void under the statute of frauds.
    2. But if a surety on an obligation, upon his promise of indemnity, procures another to become surety with him on the same instrument, the promise is not within the statute, for the indemnity promised is to secure his own default.
    3. A surety on an administration bond, by his agreement of indemnity, induced another to sign the same bond as surety with him. Held, that the agreement, though not in writing, was valid and binding as between, the parties to the agreement.
    Error to the District Court of Harrison county.
    The original action was brought in the Court of Common Pleas of Harrison county by Walter C. Maxwell against Thomas Ferrell, on his agreement to indemnify Maxwell for going surety with him on the bond of John N. Ferrell, as administrator of the estate of John McBeth.
    Maxwell recovered a judgment, and the case was appealed to the district court, where he also recovered judgment, and thereupon Ferrell prosecuted his petition in the supreme court to reverse the judgment of the courts below.
    The district court placed on record a finding of facts, upon which their judgment was founded, which presents the case, and is as follows:
    John N. Ferrell, August, 1863, was appointed administrator of John McBeth, deceased, and gave bond in the sum of $3,000, with the plaintiff and defendant and others as his sureties.
    After the defendant had himself consented to become one of the sureties on the bond, defendant applied to the plaintiff to become a surety on the bond with him, and to induce the plaintiff to do so, promised that if he would become such surety with him he would indemnify and save him harmless from all loss and damage that might happen-to him by reason of becoming such surety; and the plaintiff, by reason of such promise, and relying thereon, consented to become one of the sureties on the bond.
    The agreement of the defendant was not evidenced by writing.
    After the plaintiff had consented to become surety on the bond, it-was signed by said John N. Ferrell, who then, took it to the plaintiff to be signed by him, in accordance with his promise to the defendant, and who then relying-on' the said promise of the defendant to save him harmless, and also sign the bond himself as surety, did sign said bond1 as one of the sureties thereon; and the bond was then taken by said John N. Ferrell to the other sureties and to the-defendant, and was signed by them and the defendant, and the probate judge accepted and approved the same.
    Afterward, by reason of the neglect and default of the-said John N. Ferrell in not paying over the balance of the-moneys of said estate found to be in his hands on final settlement as such administrator, a suit was brought on the-bond by the heirs of said John McBeth against said plaintiff and the other signers of the same.
    None of the defendants in the suit were or are solvent, except the plaintiff and defendant and the estate of John-C. Dunlavy, deceased, represented by David Chalfant, administrator of said estate; and the defendant, having before judgment settled with and paid said heirs his one-third of the amount claimed in said suit and costs, was discharged, and judgment was rendered in the action against said Walter C. Maxwell and against said David Chalfant, as administrator of the estate of Dunlavy, for the sum of $895.47, and for costs, amounting to $28.20, all of which remains unpaid.
    On these facts the court held, as matter of law, that Thomas Ferrell was liable, and rendered judgment in favor of Maxwell against him, that he pay one-half of the judgment so rendered against Maxwell.
    
      
      Lewis Lewton, for plaintiff in error,
    claimed that the promise of the plaintiff in error was clearly within the statute of frauds and void, and cited 1 Saund. 211c; Green v. Creswell, 10 Adol. & Ellis, 453; Easter v. White, 12 Ohio St. 219; Kelsey v. Hibbs, 13 Ohio St. 340; Goodman v. Chase, 1 B. & Ald. 297; Matson v. Wharham, 2 Durnford & East, 80; Buckmeyer v. Darnell, 2 Ld. Raym. 1085; Nelson v. Boynton, 3 Met. 396; Loomis v. Newhall, 15 Pick. 159; Kirkham v. Marter, 2 B. & Ald. 613; Wing v. Terry, 5 Hill, 160; Carville v. Crane, 5 Hill, 483; Kingsley v. Balcome, 1 Barb. 131; Broom on Frauds, secs. 153-180.
    There is a class of cases, where the object of the promi - sor and the effect of the act of the promisee is to subserve some purpose personal to the promisor, or to secure to him some benefit or advantage he could not otherwise enjoy, that are held not to fall within the statute. Williams v. Leeper, 3 Burr.; Casthing v. Aubert, 2 East; Barrall v. Trussell, 4 Taunt. 117; Browning v. Stallard, 5 Taunt. 450, and many others are examples of this class. See Roberts on Frauds, 232. But the signing of this bond was in no respect a benefit or accommodation to the promisor, but was for the sole benefit and accommodation of the administrator; nor was the promise one to indemnify the defendant in error against any default of the plaintiff in error, but was a promise 'to indemnify against answering for a default of the administrator.
    
      J. M. Estep, for defendant in error:
    It is claimed by the plaintiff in error that his promise of indemnity is not binding on him by reason of the statute of frauds.
    But here both Eerrell and Maxwell have signed the bond for John N. Eerrell, and the authorities are clear that we have the right to show the relation between the signers of the instrument by parol — who are principals and who sureties. Barry v. Ransom, 2 Kern. 462; 1 Smith’s L. C. 479 (6 American ed.)
    
      If this contract was made in parol, as alleged and found by the court, Eerrell became a principal as to Maxwell, and no contribution could be claimed of Maxwell in case Eerrell paid the debt.
    One may be a surety for a surety. 1 Lead. Cas. in Eq. 162, 169 (3 American ed.); 1 Story’s Eq., sec. 498; 12 Mass. 98; Harris v. Warner, 13 Wend. 400; 1 Smith’s L. C. 479 (6 American ed.)
    Now, in this case Thomas Eerrell is bound in writing to pay this debt in default of the administrator of John N. Eerrell. I believe no case can be found, where both sureties signed the obligation, holding that the agreement of the one to indemnify the other must be in writing. Thomas v. Cook, 15 Eng. Com. Law, 333; Barry v. Ransom, 2 Kern. 492; 1 Smith’s L. C. 478, 479; Blake v. Cole, 22 Pick. 97.
    “ Sureties are entitled to come into equity after the debt is due, to compel the principal to pay the debt and exonerate them from liability.” 1 Story’s Eq., sees. 327, 499, 639, 730; 4 Kent Com. 563; 4 Ohio St. 600.
    I think, therefore, that the agreement of Thomas Eerrell to save Maxwell harmless, was valid and binding, and should be enforced, and that the judgment of the district court was correct and proper.
   Day, Chief Judge.

It is claimed by the plaintiff in error that the agreement of indemnity on which the action was founded, not being in writing, is void under the statute of frauds. The question, then, is, whether the agreement is a “ special promise to answer for the debt, default, or miscarriage of another person,” within the meaning of the fifth .section of that act ?

It is undoubtedly settled law that if a person signs an obligation as surety, upon a promise of indemnity by one not bound by the same instrument, the promise is within the statute, as being a promise to answer for the default of the principal upon his implied liability to his surety. Easter v. White, 12 Ohio St. 219; Kelsey v. Hibbs, 13 Ohio St. 340.

But it is equally well settled that if a surety on an obligation, upon his promisé of indemnity, procures another to go surety with him on the same instrument, the promise is not within the statute, for the indemnity promised is to .secure his own default. Oldham v. Broome, ante, 41.

Recognizing this distinction, upon a review of the cases, the result of the authorities on the question is stated in 1 .Smith’s Leading Cases (7 Am. ed.), 511, as follows: “A promise by a stranger to the debt, to indemnify a surety, is prima facie within the statute, because the principal is hound by an implied obligation to do that which the promisor agrees to do expressly, and the promise is, therefore, really to answer for the default of the principal. When, however, the promisor is directly or indirectly .answerable for the debt independently of the promise, any •engagement which he may make, that it shall be paid, or that the surety shall not be compelled to pay it, will he regarded as contracted on his own behalf, and not for the ■debt or default of another, in the sense in which the term is used in the statute.”

In the case before us, Maxwell became surety on the "bond, relying on the promised indemnity of the plaintiff in error, who, as he agreed to do, also signed the bond as .surety. The case, then, falls into the class where the promisor is liable for the debt independently of the promise in question; his engagement to indemnify Maxwell must, therefore, be regarded as having been entered into on his own behalf, and not for the debt or default of another, within the meaning of the statute.

It results, from this view of the case, that the judgment of the court below must be affirmed.  