Aldrich v. Aldrich

| Vt. | Oct 15, 1883

The opinion of the court is delivered by

Royoe, Oh. J.

This cause was heard on a general and special demurrer to the defendant’s third plea. The special causes of demurrer have not been insisted upon in argument; ■ and the question presented for determination is, whether the facts alleged in that plea constitute a defence to the action.

The plea alleges that the parties signed the note upon which the payment was recovered against,tire plaintiff, and which he subsequently paid, as sureties for John D. Aldrich; that John D. and the parties, and George Jenkins, the payee of the note, were- at the time of its execution, and ever since have been, residents of this State; that before the service of the process upon the plaintiff upon which the judgment was obtained against him in New Hampshire, the right of recovery upon the note as against the principal and, sureties by the laws of this State was barred by the Statute of Limitations, and for that reason they had declined and refused to pay it; that the plaintiff, knowing that a recovery upon said note was by the laws of this State barred by the Statute of Limitations, and that the defendant had declined and refused to pay the same, went voluntarily and without the knowledge and consent of, and against the will, of the defendant, into New Hampshire, where the process was served upon Mm; that thereby he made himself liable to pay said note; and that he has paid the' judgment except the sum of $1,050, which was paid by John B.

By the law of the State of New Hampshire, where the plaintiff was found when the process was served upon him, the Statute of Limitations was not available as a defence.

Hid the plaintiff by voluntarily going into New Hampshire and thus giving the payee of the note an opportunity to institute the proceedings which terminated in a judgment against him release his co-surety from his liability for contribution ? It will lie noticed that it is not alleged that the plaintiff went into New Hampshire with any fraudulent intent, or for the purpose of giving an opportunity to have the process served upon lfim. A voluntary payment of an obligation by a surety which he is not under a legal obligation to make, does not give a right of action against a co-surety for contribution. But where the payment is compulsory the rule is different; in such case the payment by one surety gives a right of action against co-sureties for contribution. And a payment is deemed in law to be compulsory when the party making it cannot legally resist it. The payment of a judgment while it is collectable comes within the definition of a compulsory payment.

The legal right of sureties as against each other is not governed by the lex loci contractus; neither is there any implied obligation that they shall reside or remain in any particular locality. The right to contribution among co-sureties is not. founded on the contract of suretyship, but is based on an equity arising from the relation of the co-sureties. The right of action for contribution accrues when one has paid more than his proportion of their liability. It is an equity which arises when the relation of co-sureties is entered into, and upon which a cause of action accrues, when one has paid more than his proportion of the debt for which they were bound. Burge Sur. 384; Theo. Pr. & S. 158; Camp v. Bostwick, 20 Ohio St. 337; Peaslee v. Breed, 10 N. H. 489; Boardman v. Paige, 11 N. H. 431; Sibley v. Mc Allister, 8 N. H. 389.

Sec. 976, R. L., so much relied upon by counsel for defendant, in. our judgment has no application to the question here presented. The adoption of the rule contended for by the defendant would compel a continuous residence of a surety in this State to preseiwe his right to call upon a co-surety for contribution. If he leaves the State for any reason and goes into a jurisdiction where the Statute of Limitations is not a defence, he does so at the peril of losing his right to call for contribution. If he so removes from the State as to arrest the running of the statute, and afterwards returns into the State and is sued and compelled to pay the judgment obtained, the same result would follow, if a co-surety could be allowed to say, “ It was your duty to have remained in the State so that the Statute of Limitations would have barred a right of recovery against you.” Where the right to call for contribution exists, it continues until all are placed upon an equality of benefit or loss. It is to enforce that equality that this suit was instituted. And the matters alleged in the plea are not in law a defence to it.

The judgment overruling the demurrer is reversed, demurrer sustained, plea adjudged insufficient, and cause remanded.