Aven v. Singleton

96 So. 165 | Miss. | 1923

Lead Opinion

Ethridge, J.,

On September 1, 1919, the appellants and appellees jointly and severally gave three notes payable to D. L. Holcomb or bearer due and payable January 1, 1920, January 1, 1921, and January 1, 1922, respectively. On the 13th of May, 1922, the appellants paid the said notes, and Holcomb indorsed on the back of said notes the following:

“Transferred without recourse to O. O. Aven, B. P. Smith, A. J. Curry, J. W. Hayden, T. T. Gee, W. T. Turner, L. H. Hightower, C. V. Gibson, this May 13, 1922. D. L. Holcomb.”

On the 17th day of June, 1922, these parties to whom said transfer was made brought suit against the appellees, six in number, the declaration, after formal parts, being as follows:

“That on September 1, 1919, the plaintiffs and the defendants executed three certain promissory notes to D. L. Holcomb, the first of said notes being in the sum of five hundred and eighty dollars due January 1, 1920, the second being for one thousand, two hundred thirty-six dollars and sixty-five cents due January 1, 1921, and the third being for one thousand, three hundred ten dollars and eighty-four cents, due January 1, 1922, all of said notes bearing interest after maturity at the rate of six per cent, per annum until paid, and all of said notes providing for attorney’s fees of ten per'cent, upon the amount due if placed" in the hands of an attorney for collection. Copies of said notes are attached to this declaration as Exhibits A, B, and C hereto and made a part hereof as if copied herein in words and figures.

“Plaintiffs further show unto the court that in due course all of said notes matured, and the payee, D. L. *263Holcomb, demanded payment thereof, whereupon the plaintiffs paid'said notes, the defendants having refused to pay any part thereof, and said notes were transferred to plaintiffs without recourse by said D. L. Holcomb, and plaintiffs further allege that they are the holders of the said notes in due course for valuable consideration and sue thereon as said holders.

. “Plaintiffs further show unto the court that both plaintiffs and defendants were equally liable on said notes, that the defendants refused to pay any part thereof, and that plaintiff, had to pay the said notes in order to protect themselves against expense and useless litigation.

“Plaintiffs further show that the liability of each of the plaintiffs and defendants was one-fourteenth of the amount of the notes, and that the joint liability of the defendants to these plaintiffs is six-fourteenths of the amount due.

“Plaintiffs further allege that all of the parties to the said- notes were joint and comakers, and that none were indorsers thereof.

“Plaintiffs further show unto the court that the defendants are now due to the plaintiffs six-fourteenths of the note .marked Exhibit A, which is the amount of two hundred fifty-five dollars and seventy-two cents to January 1, 1922, plus ten per cent, of said sum as attorney’s fees, and that defendants are further indebted to the plaintiffs for six-fourteenths of the amount of the note marked Exhibit B, which is the sum of five hundred,, seventy-seven dollars and sixty-eight cents to January 1, 1922,. plus ten per cent, of said amount as attorney’s fees. And plaintiffs further show to the court that the defendants are further indebted to the plaintiffs in the sum of six-fourteenths of the note marked Exhibit C, which is the sum of five hundred, seventy-eight dollars and sixty-four cents to January 1, 1922, plus ten per cent, thereof as attorney’s fees. And plaintiffs further show *264that defendants are liable for interest on each of the said sums at the rate of six per cent, per annum from the date of the filing of this declaration until paid. Plaintiffs further allege that defendants refuse to pay said amounts, although 'often requested so to do, to the damage of the plaintiff in the sum of one thousand, four hundred twelve dollars and four cents, and to the further damage. of the plaintiffs in the sum of one hundred forty-one -dollars and twenty cents as attorney’s fees.

“Whereupon plaintiffs bring this suit and demand judgment of the defendants in the sum of one thousand four hundred twelve dollars.and four cents, with interest thereon from the date of the filing of this declaration at the rate of six per cent, per annum until paid, and demand further judgment of the defendants in the sum of one hundred forty-one dollars and twenty cents as attorney’s fees, as provided for in said notes, together with all the costs of this suit.”

The said notes with the said indorsements were made exhibits to the declaration. Three of the defendants, W. D. and J. F. Singleton and W. T. Fielder, demurred to this declaration, the grounds of demurrer being as follows :

“(1) Because plaintiffs cannot maintain this suit against defendants on the notes referred to and made a part of their declaration, nor any part thereof.

“(2) Because the declaration shows that said notes have been paid in full by the plaintiffs, and suit thereon cannot be maintained against these defendants.

“(3) Because the declaration states no cause of action against these defendants, or either of them.

“(4) Because plaintiff’s rights, if any they have, against these defendants, are not maintainable in the form of suit resorted to herein, and such a suit cannot be maintained in, or entertained by, this court.”

This demurrer was sustained, exception taken, and the declaration was dismissed without prejudice, from which this appeal is prosecuted.

*265It seems to he the law of this state that the payment of the note to the holder thereof by one of the joint and several makers operates as a payment of the note unless the payment be made “for honor” under the Negotiable Instrument Law, and a certificate in accordance with that act be made by a notary public or other officer. However, the payment of the note by some of the joint makers does hot extinguish the liability of the other makers for a contribution to those who pay the note. And in our opinion the declaration above quoted sets out all of the necessary facts necessary to be stated to show a right of contribution. It states all of the facts that a formal pleading for a contribution would state, and, although it makes the notes exhibits to the declaration and a part thereof, and states that the plaintiffs are holders in due course, yet this statement, taken in connection with the other statements in the declaration, shows clearly and unmistakably that the rights that the plaintiffs are seeking in the suit are to recover from the defendants their proportion of the joint debt made by the plaintiffs and the defendants jointly and severally.

Section 729, Code of 1906 (section 512, Hemingway’s Code), provides:

“The declaration shall contain a statement of the facts constituting the cause of action, in ordinary and concise language, without repetition; and if it contain sufficient matter of substance for the court to proceed upon the merits of the cause, it shall be sufficient; and it shall not be an objection to maintaining any action that the form thereof should have been different.”

Section 722, Code of 1906 (section 505, Hemingway’s Code), provides that — “The nonjoiner or misjoiner of plaintiff shall not be objected to by the defendant at the trial, unless he give written notice thereof with his plea, stating the name of the person alleged to be omitted or improperly joined; and the court or judge, at any time, before trial of the issue, whether of law or fact, may *266allow the declaration and writ to be amended go as to obviate the objection, upon such terms as may be proper.”

Section 723, Code of 1906 (section 506, Hemingway’s Code), provides:

“The nonjoinder or misjoinder of a defendant in any action upon contract shall not be objected to by a defendant on the trial of the cause unless be give written notice thereof with his plea, stating the name of the person alleged to be committed or improperly joined; and upon such notice being given, the court or judge, at any time before the trial of the cause, may allow an amendment to the pleading so as to obviate the objection, upon such terms as may be proper.”

We do not think that the misjoinder of either the plaintiffs or the defendants can be raised by demurrer, and, if it is raised by plea, the court may allow any proper or necessary amendment necessary to bring the cause to trial between the parties; any necessary amendment being expressly permitted by section 775, Code of 1906 (section 558, Hemingway’s Code). And on the trial of the cause as many verdicts or judgments may be rendered as may be necessary under sections 813 and 811, Code of 1906 (section 601 and 602, Hemingway’s Code). These sections in full read as follows:

“601. Judgments may be rendered for or against one or more of several plaintiffs, or for or against one or more of several defendants; and in such cases the verdict shall be as the right may appear among the several parties to the action, and shall state separately any amount allowed to any of the parties.
“602. Such and SO' many verdicts and judgments— joint, separate and cross — as may be necessary to the adjustment of the rights of the several parties may be rendered in the game action.”

In our opinion it was the object of the legislature in the enactment of these several statutes to materially change-the common-law procedure and to administer justice according to the rights of the parties, and to prevent the *267sending of the litigant from one court to another according to the technical rules of the common law. The court, at common law, had no power to render more than one judgment, and consequently did not have the power to entertain a suit which required a number of different rights to be settled. The object of the last two statutes was to correct this and to confer such power; consequently the common-law objections can no longer be considered. The appellees concede that the circuit court has jurisdiction to entertain a suit for contribution and that plaintiffs do not have to resort to the court of equity for that purpose. They contend, however, that the suit here is a suit on the notes, and that such a suit is different in substance from a suit for contribution. In other words, in the language of the -fourth ground of demurrer that the plaintiffs’ “rights, if any they have, against these defendants, are not maintainable in' the form of suit resorted to herein, and such a suit cannot be maintained in, or entertained by, this court.” If the plaintiffs are entitled to contribution, and if such right may be enforced in a circuit court, which we think can be done, then a demurrer is not sustainable on the theory that the form of the action to secure the same right should have been different: The right to contribution springs from the joint and several obligations; that is to say, the right is rooted in the obligation, and but for the obligation would not exist. •That being true, the right of each plaintiff to have a judgment against each defendant as may be necessary to care for the proportion of liability due by such defendant to such plaintiff may be enforced in the circuit court, and under the statutes above referred to as many judgments may be entered as may be necessary to protect the respective rights of the several parties to the suit.

It follows that the judgment of the court below will be reversed, and the cause remanded for further proceedings.

Reversed and reminded.





Dissenting Opinion

Sykes, J.

(dissenting).

In my opinion the demurrer to the declaration was properly sustained. The declaration is predicated upon the fact that the plaintiffs are the holders in due course of the notes and sue upon them as such holders.' Plaintiffs and defendants were joint makers, and when the notes were paid hy the plaintiffs they were transferred to them. The suit is not for the entire amount of the notes, but for the pro rata share of the defendants, based, however, upon the fact that plaintiffs are the holders in due course of the notes.

It is the contention of the appellants, as shown by their brief, that they are entitled to maintain the suit as holders because of section 2169, Hemingway’s Code (section 2682, Code of 1906). That section reads as follows:

“In all cases of joint or joint and several indebtedness, the -creditor may settle or compromise with and release any one or more of such debtors; aiid the settlement or release shall not affect the right or remedy óf the creditor against the other debtors for the amount remaining due and unpaid, and shall not operate to release any of the others of the said debtors; and all mortgages or securities for -the said indebtedness shall remain in full force against the debtors not released, in favor of the creditor, and also in favor of such of the debtors as may be entitled to contribution, payment, or reimbursement from others of said debtors, and the right of payment, contribution or reimbursement, as among themselves, shall not be affected by this section; and if any debtor, so released, shall have paid more than his ratable share of the whole debt, the whole amount paid by him shall be credited, and if less than his ratable share, then the full amounts of his ratable share shall be credited, and the other debtors shall be liable for the residue.”

It is unnecessary to analyze this' section, because the majority opinion does not hold that the suit can be maintained under it. In my opinion this section does not authorize a suit of this kind.

*269The plaintiffs were comakers of the notes sued on. When they paid these notes, the indebtedness evidenced thereby was extinguished, and neither they nor any one else could then maintain a suit on the notes. Stevens v. West, 1 How. 310, 29 Am. Dec. 630; Lenoir v. Moore, 61 Miss. 400; Claiborne v. Bank, 2 How. 727.

The rule is thus succinctly stated in 7 Cyc. 1023:

“Where a note is paid by one of several joint makers to the payee or holder, it will operate as an extinguishment of the note as to the latter. . . .”

It is true that under the facts stated in the declaration the plaintiffs would be entitled to contribution were a suit properly brought upon this theory. Even if we view the facts stated in the declaration as also an attempt to state a cause of action for contribution, the demurrer still should have been sustained. The suit is based on promissory notes, express promises to pay. A suit for contribution is based on an implied promise arising from the payment of the notes by several of the makers, whereby a right to contribution arises because of the equity of the situation from those makers of the note who fail to pay their pro rata share. This right of contribution does not arise until the note had been paid and the express indebtedness thereby extinguished. Originally the right of contribution was purely an equitable right given because of the equities of the situation. A modern view of this doctrine, however, is to the effect that a suit for contribution may be maintained in a law court upon the theory that by virtue of the payment of the note an implied promise to pay his pro rata share is given in favor of those extinguishing the indebtedness. 9 Cyc., p. 794; De Paris V. Trust Co., 7 Boyce (30 Del.) 178, 104 Atl. 691, 1 A. L. R. 1352; 6 R. C. L. 1036; Hunter v. Harris, 63 Or. 505, 127 Pac. 786.

The declaration clearly attempts to state a cause of action based on the notes, which is an express promise to pay. It attempts to treat the note as not extinguished, but still as an existing indebtedness. The theory of con*270tribution, upon the other hand, treats the note as having been extinguished and paid, and by virtue of this extinguishment of that right an implied promise therefrom arises. In my judgment this is an attempt to state in one count of a declaration two separate, independent and antagonistic causes of action. This court has repeatedly held since the enactment of the statute referred to in the majority opinion of the court that this cannot be done. Town of Hazelhurst v. Cumberland Tel. Co., 83 Miss. 303, 35 So. 951; Railroad Co. v. Abrams, 84 Miss. 456, 36 So. 542.

This declaration does not merely present a misjoinder of both parties plaintiff and parties defendant, but a misjoinder in one coui\t of separate, independent, distinct, and antagonistic causes of action.

The declaration, in my opinion, is further faulty because a liability for contribution is a separate, and not a joint-, liability. In order to maintain actions for contribution in a court of law, each plaintiff should separately sue each defendant for the amount due him in this case. That this is a separate liability is laid down in Cyc., Corpus Juris, and Ruling Case Law. See, also Falley v. Gribling (Ind. Sup.), 22 N. E. 723; Yore v. Yore, 240 Mo. 451, 144 S. W. 847; Hoyt v. Tuthill, 33 Hun (N. Y.) 196; notes in 10 Am. St. Rep. 644, and 98 Am. St. Rep. 46.

In order to avoid this multiplicity of suits, these plaintiffs could maintain a suit against these defendants in a court of equity, because the causes of action arise from the same transaction.

Entertaining these views, I feel compelled to express them in this dissent.





Dissenting Opinion

Smith, O. J.

(dissenting). I am of the opinion that the demurrer was properly sustained for the reason that sections 813 and 814, Code of 1906 (Hemingway’s Code, .sections 601 and 602), have no application here, and that consequently a joint action at law for contribution against all of the parties liable therefor cannot be maintained, but each must be sued separately. 13 C. J. 834.