The opinion
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Holcomb, J.
(dissenting) — The author of the prevailing opinion is thorough and accurate in the statement of the facts and issues.
There is no precedent, however, for the modification of the judgment in this case as decided.
Maryland Casualty Co. v. Grays Harbor County,
159 Wash. 356 , 293 Pac. 441 , is not such a precedent, for there the court said:
“The sureties should have paid the whole of the county’s deposit claim, as they were legally bound to do immediately upon the incurring of the insolvency of the bank, and then they could have been let into the shoes of the county as to all of its claims against the assets of the bank.”
In
Chapman v. Ross,
152 Wash. 262 , 277 Pac. 854 , we held that subrogation will not be allowed where the prior debt has not been discharged by the payor.
It is apparent in this case that respondent plaintiff has no judgment against the bank to which the surety could be subrogated, and that the surety has neither paid nor offered to pay any indebtedness which the payor may have owed to him. Such payment is necessary before the surety company can be subrogated to the rights of plaintiff respondent.
The judgment of the trial court was right and should be affirmed.