195 Wis. 304 | Wis. | 1928
Lead Opinion
(1) Appellants contend that they are not liable to contribute their share of the amount paid to the plaintiff bank because Henry A. Schmitz has made no effort to collect the amount of the judgment from the Lake Motor Company. It appears that the motor company has some property in the form of dies and material which has value if it can be used in the manufacture of motors. But this property is of very doubtful value unless used for that purpose, and it is problematical whether such use will be made of this property.
The right to contribution arises when one jointly liable has paid more than his just proportion of a joint liability. In actions at law, at least, it is not necessary to establish the insolvency of the principal debtor in order to enforce contribution. Boutin v. Etsell, 110 Wis. 276, 280, 85 N. W. 964. We need not determine whether the same rule prevails in equity because the proof in this case establishes the fact, found “by the trial court, that the motor company was insolvent from the time this action was begun and unable to meet its obligations as they matured.
(2) George J. Schmitz, who was arranging for the loan on behalf of the motor company, requested Henry A.
Lord Kenyon in a nisi prius decision in 1796 said, in speaking of the liability of several sureties, that “where one has been induced so to become surety at the instance of the other, though he thereby renders himself liable to the person to whom the security is given, there is no pretense for saying that he shall be liable to be called upon by the person at whose request he entered into the security.” Turner v. Davies, 2 Esp. 478, 479.
Based upon this early statement of the law some courts have held that a surety who signs at the request of another surety is not liable to contribution at the suit of the surety who makes the request. But an examination of these cases will disclose that, almost without exception, they are cases where there is some other ground for relieving the second surety from liability for contribution. They are cases where the first surety has secured some personal benefit which does not inure to the benefit of the second party.
In the absence of some circumstances which would render contribution inequitable, the first surety is not deprived of his right to contribution by the fact that the second surety assumed the obligation at his request. The rule established by the great weight of the decided cases is well stated in the Michigan court: “The law implies from all joint obligations a prima facie liability to contribution, which may be overcome by showing that one is bound to protect the other. This may be, either because he is a principal debtor on his own account, or because he has undertaken to save the other harmless. But the mere request to another to join him as a co-surety would upon all ordinary rules, of construction mean that he was to enter upon the same responsibilities and become bound on equal terms. Such we conceive to be the
It is undisputed that the appellants did not know that Henry A. Schmitz had asked that they sign as sureties, and that they signed because they believed the bank required their signatures. There was no agreement that Henry A. Schmitz should indemnify appellants or save them harmless. Henry A. Schmitz received no part of the money secured by the bank loan. There is nothing which takes the case out of the general rule that all sureties or guarantors are liable for their proportionate share of the joint obligation.
Henry A. Schmitz and George J. Schmitz signed the guaranty before it was presented to the appellants for their signature. This fact did not create a relationship where the liability of the appellants was secondary to that assumed by Henry A. Schmitz and George J. Schmitz. The note was not completed and was not accepted by the bank until all four guarantors had signed. They thereby became equally liable upon the guaranty.
(3) George J. Schmitz, acting as secretary for and on behalf of the motor company, applied to an official of the plaintiff bank for the loan here in question. This official stated that the bank would require the guaranty of Henry A. Schmitz and George J. Schmitz. When the matter was presented to Henry A. Schmitz he agreed to sign on condition that appellants would also guarantee the note. The application for the loan was then passed upon by the discount committee of the bank with the understanding that the paper should be guaranteed by the four men who signed the written guaranty, and that certain stock belonging to Henry A. Schmitz should be deposited as collateral to his personal guaranty on the note.
Appellants contend that the right of Henry A. Schmitz to contribution was barred (1) by the fact that George J.
These representations on the part of George J. Schmitz do not bar the right of Henry A. Schmitz to contribution. George J. Schmitz was not acting for or representing Henry A. Schmitz in this matter. He had no authority to represent or to bind Henry A. Schmitz. He was acting solely as an officer of the motor company, in which capacity his statements did not in any way affect the right of Henry A. Schmitz to recover contribution from his co-guarantors.
(4) Finally it is urged that the right of Henry A. Schmitz to recover should be denied because he does not come into equity with clean hands. There is no basis for such a claim. The appellants were part owners of the motor company. The business of .the motor company was conducted in their office. They handled the mail of the motor company. They manufactured the motor which was sold by the company. The businéss of the motor company was conducted in Milwaukee. Henry A. Schmitz, who lived in Appleton, intrusted the management of the motor company to George J. Schmitz and to these appellants. Appellants were interested in securing the loan here in question in order that the motor company might continue business.
It proved to be a bad venture'. Now that it has failed, it is probably only human nature that all who were connected with it should try to get out from under its obligations. It is a case where each should bear his proportionate share of the loss. The judgment accomplishes that purpose. It should be affirmed.
By the Court. — Judgment affirmed.
Dissenting Opinion
(dissenting). As recognized inferentially at least in the majority opinion, contribution may be denied when to grant it would be inequitable, and therefore, and because I think the facts disclose a situation where it is inequitable to allow Henry A. Schmitz the relief given him as against Martin and Tannhauser, I must dissent.
Quite clearly Martin and Tannhauser would not have signed the guaranty unless the responsible one of the other two, Henry A. Schmitz, also signed; Henry A. Schmitz in turn refused to be a party on the obligation unless Martin and Tannhauser would do likewise; and when Henry A. Schmitz so informs his son, George J. Schmitz, he intrusts the'son with the duty of obtaining the signatures of Martin and Tannhauser. In the performance of that service or duty George J. Schmitz makes to them an important and material representation, viz. that certain bank stock of Henry A. Schmitz is to be put up as collateral and that it was sufficient to relieve all other parties from possible eventual liability. The representation being made, and, evidently, naturally and reasonably relied upon, I think it is beside the mark to say that George J. Schmitz did not represent Henry A. Schmitz in so doing, and because of that then to say that Henry A. Schmitz may now have the direct and substantial benefit resulting therefrom, and still as to him any such representation may be blotted out of the record, although it clearly would have barred George J. Schmitz had he sought to so enforce contribution, seems to me inequitable. Having appointed his son his agent to procure the signatures of the others, I do not think Henry A. Schmitz should be bound by what that- agent did in so procuring them.
Neither do I think that Martin and Tannhauser, in view of the family and business relationship between the father and son, were negligent in failing to view with suspicion or to follow with search such representation.
