3 Denio 61 | N.Y. Sup. Ct. | 1846
It is a general principle, that in case of a joint bond or obligation, if one of the obligors dies, his representatives are at law discharged from liability to the obligee, and the survivor alone can be sued. (1 Chitty’s Pl. 36.) But in equity the representatives of such deceased obligor are liable, unless the deceased was a mere surety; in such case even equity will not extend by implication the responsibility from that of a joint to a joint and several undertaking. (Weaver v. Shryock, 6 Serg. & Rawle, 262; Sumner v. Powell, 2 Meriv. R. 30; Harrison v. Mirge, 2 Wash. Va. R. 136; Ward v. Webber, 1 id. 274; Thomas v. Frazer, 3 Ves. jun. 399; 1 Story’s Com. on Eq. § 162 to 164.)
The counsel for the defendants, on the argument, assumed the principle that the liability of one co-surety to contribute to another, must depend upon his liability to the creditor, at the time of payment of the debt by such other, or at most at the time that such other’s liability was fixed and ascertained, by-judgment or decree; and that as Gould or his representatives were never thus liable to Fuller, no breach of the condition of the bond having been committed in Gould’s lifetime, and as by
From the examination which I have made I am entirely satisfied that the principle assumed is not sound, and that it cannot be sustained. I think that the law implies a contract between co-sureties to contribute, ratably, towards discharging any liability which they may incur in behalf of their principal, such contract originating at the time they execute the principal obligation ; that there results, by implication of law, a promise on the part of the principal to indemnify his sureties; and also in like manner a mutual promise between the sureties, to contribute proportionally towards indemnifying each other against such liability; and that such implication does not take its origin from the subsequent payment of the money. The right of action for contribution arises, it is true, when the surety claiming such contribution pays the money, and not before. Notwithstanding a. breach, the debt may be paid by the principal, or relinquished or compromised,, and the surety never compelled to pay; - and in that case he never has a cause of action, either as against his principal or co-surety. The right of action as between the sureties grows out of the original implied agreement, that if one shall be compelled to pay the whole or a disproportionate part of the debt, the other will pay such sum as will make the common burden equal. In case of the death of either, this obligation devolves upon his legal representatives. In this respect it is like any other contract made by one in his lifetime, to pay money at a future time, absolutely or contingently, who dies before the occurrence of any breach of the contract. (Tom v. Goodrich, 2 John. R. 213; Story on Contr. §§ 558, 584; Chit. on Contracts, 597; Toussaint v. Martinant, 2 Tenn. R. 104; Powell v. Smith, 8 John. 249; Cowell v. Edwards, 2 Bos. & Pull. 268; Deering v. The Earl of Winchelsea, id. 270; Wood v. Leland, 1 Metc. R. 387; Bachelder v. Fisk, 17 Mass. R. 464.)
The case of Bachelder v. Fisk is directly in point; the facts
It follows that the first plea to the third and fourth counts furnishes no sufficient answer. The defence there pleaded is, that the condition of the bond executed by the plaintiff and the defendants’ testator as co-sureties for Smith the guardian, was not broken by the guardian in the lifetime of the testator, and that the plaintiff had not become liable or been obliged to pay any sum of money by reason of any default of the guardian arising out of or upon the condition of said bond or writing obligatory, during the lifetime of Gould. The facts thus set up are wholly immaterial, and cannot be a ground of defence.
The other plea which is demurred to, sets up as a defence to those counts, that the plaintiff voluntarily, and without being compelled by execution, paid the money, and so paid it in his
The third count, although unskilfully and inartificially drawn, is, I think, good in substance. It does not, as it should have done, contain a distinct averment of mutual promises; but the testator’s undertaking and the consideration of it are set forth with sufficient certainty.
The fourth count I think is bad in substance as well as in form. The design of the pleader seems to have been, to charge the defendants upon promises by them in the capacity of executors; which would "have been well enough on a proper occasion, if stated in proper form. (Carter v. Phelps, 8 John. 440; Whitaker v. Whitaker, 6 id. 112.) But I think the attempt here to do so has utterly failed. No promise by the testator to his co-surety is stated, but it is alleged that the defendants, as executors, in consideration of the liability of their testator to pay to the plaintiff a moiety of what he might pay, undertook and promised to pay the plaintiff such moiety, &c. The liability of the testator is stated to be a consequence of the joint bond and of the law in such case made and provided. The judgment recovered by Fuller against the plaintiff, after the death of the defendants’ testator, is then stated, and the payment thereof by the plaintiff, with the common breach that the defendants, as executors, had not paid the plaintiff. One radical defect is in stating the testator’s liability to have accrued on account of the joint bond and the law applicable to the case, whereas that liability arose out of the mutual
Judgment for plaintiff.
See Lawrence v. Leake & Watts Orphan House, (2 Denio, 577.)