Dinsmore v. Sachs

Stockbridge, J., delivered the opinion of the Court. There is but a single question presented in this case, and that not one of special difficulty. It is whether the plaintiff, Marion G. Dinsmore, is entitled to be subrogated to the rights, if any, of .the Illinois Shrety Co. against Louis Sachs, under the circumstances of this case. Counsel upon both sides have filed full briefs, with quite an extended citation of authorities, which in the view of this Court and in consonance with its decisions, do not call for any extended review or even enumeration.

These have all been examined, but the separate consideration of each one would protract this opinion far beyond what is necessary. The Circuit Court of Baltimore City on demurrer to the bill of complaint filed by Dinsmore against Sachs, sustained a demurrer to and dismissed the bill, and it ia from that action that this appeal has been taken. The facts as they appear in the bill are that the plaintiff, Dinsmore, who was engaged in the hay, grain, flour and cement business at Canton, Baltimore County, had sold to a certain Michael Westerman a considerable quantity of goods, aggregating in value $566.41; that in April, 1915, suit was entered in the Circuit Court for Baltimore County for the ⁴³⁶ recovery of that account, and after suit had so been brought it was ascertained that all of the cows, horses, wagons, harness, cans, chattels and stock of Westerman had been conveyed by way of chattel mortgage to Hyman Pachino, a brother-in-law of said Westerman, upon the discovery of which the plaintiff caused to be issued an attachment on original process for fraud against the goods and chattels so purporting-to have been conveyed. Upon the levy of the attachment the-defendant, Westerman, filed a bond to dissolve the attachment, and on which bond the Illinois Surety Company was. the surety.

The bill further alleges that the Surety Company, before giving the bond, required that Westerman should give the surety collateral security for the obligation which it had assumed in the giving of the bond, which security was given by a general bond of indemnity executed by Sachs to the Illinois. Surety ’Company to protect and save it harmless against all suits, actions, damages, costs, judgments, etc., and any and all liabilities from any of said causes. The short note case was tried and a judgment rendered in favor of Dinsmore in October, 1916, for the sum of $590.96, with interest and costs. Thereupon Westerman having failed to satisfy the judgment, payment was demanded of the Illinois Surety Company, when it was discovered that that company had become insolvent and placed in the hands of receivers, and accordingly this bill was filed, asking that the plaintiff may be subrogated to the rights of the Illinois Surety Company against Sachs, by reason of the indemnity bond given by him to the Illinois Surety Company.

There is no pretense or claim that there was any contractural relation between Dinsmore and Sachs. The chief reliance of the plaintiff