Chipman v. Morill & Webster

20 Cal. 130 | Cal. | 1862

Field, C. J. delivered the opinion of the Court—Norton, J. concurring.

The property of the plaintiff was sold under execution to satisfy a judgment recovered against the plaintiff and the defendants, and this action is brought to enforce payment from the defendants of their proportionate share. The questions for determination arise upon the pleadings. The papers read on the motion for new trial we cannot look into, as there is no appeal from the order denying the motion. The complaint sets forth that in December, 1853, the plaintiff and the defendants purchased certain real estate situated in Alameda county, and gave to the vendor in part payment for the same them joint promissory note for $11,666, secured by a mortgage upon the property; that the plaintiff by the purchase became the owner of one undivided half of the premises, and each of the defendants became the owner of one undivided fourth; that the note was not paid, and that suit was commenced for the foreclosure of the mortgage, in which judgment was recovered against the plaintiff and the defendants for $11,666, and a decree entered directing the sale of the premises for the satisfaction of the judgment; that under the decree the mortgaged premises were sold, and after the application of the proceeds to the payment of the amount due upon the judgment, there remained a deficiency of $8,040; that for this deficiency, and the per centage, interest and costs, an execution was issued on the first of-July, 1856, and under it, on the thirtieth of the same month, property of the plaintiff was sold for the sum of $12,000, and the amount applied to the satisfaction of the deficiency and interest, per centage and costs; that the deficiency was due from the plaintiff and defendants in the same proportions between themselves, as they were the purchasers and owners of the premises; that is, one-half from the plaintiff and one-fourth from each of the defendants; but as the whole amount was paid by the plaintiff, the defendants are bound to make contribution to him in proportion to their interests. Then follows a prayer for judgment that each defendant be required to pay the plaintiff the sum of |3,000, with interest from July 30th, 1856, and for such other and further relief as to equity shall seem meet.

To this complaint the defendant, Webster, demurred on various grounds, and among others, on the ground that there was a misjoinder of parties, because the cause of action was several against each of the defendants; and on the ground that it appeared that more than two years had elapsed from the time the cause of action accrued before the suit was commenced. The Court sustained the demurrer, and the plaintiff declining to amend his complaint, final judgment was entered thereon.

The defendant, Morrill, answered, denying, to use the language of his answer, “ the greater part of the allegations of the complaint,” without stating what those allegations were, and setting up, or rather attempting to do so, the Statute of Limitations and a discharge under the insolvent law of the State. The plaintiff, instead of demurring to the defective answer, filed a replication to it, denying the bar of the statute and the discharge in insolvency. The case was then submitted upon the pleadings. Upon them the Court gave judgment for the defendant. It is from these two judgments —one in favor of the defendant, Webster, on the demurrer, and the other in favor of the defendant, Morrill, on the pleadings, that the appeal is taken.

The appellant in his argument of the appeal takes two positions: first, that the action is one in equity to enforce a contribution from two of three obligors, to which the statute does not create a bar until after the lapse of four years (Act of April 22d, 1850, defining the time for commencing Civil Actions, sec. 19); and second, that if the action be regarded as depending upon contract, that such contract is founded upon an instrument of writing, and to the action the statute in consequence fixes a like limitation of four years.

1. In support of the first position, the appellant cites various authorities upon the doctrine of contribution as between cosureties, to the effect that such doctrine depends more upon a principle of equity than upon contract. Such is undoubtedly the case as between cosureties, and the principle is, that where there is a common liability, equality of burthen is equity. Courts of equity, therefore, naturally took jurisdiction of eases of contribution, where one surety had paid more than his just proportion. But the equitable doctrine, in progress of time, became so well established, that parties were presumed to enter into contracts of suretyship upon its knowledge; and consequently, upon a mutual understanding that if the principal failed, each would be bound to share with the others a proportionate loss. Courts of common law thereupon assumed jurisdiction to enforce contribution between the sureties, proceeding on the principle that from them joint undertaking there was an implied promise on the part of each surety to contribute his share, if necessary, to make up the common loss. (Craythorne v. Swinburne, 14 Vesey, 164; Sansdale’s Administrators and Heirs v. Cox, 7 Monroe, 403; Campbell v. Mesier, 4 Johns. Ch. 339; 1 Maddock’s Ch. 236; Fletcher v. Grover, 11 N. H. 369.) This jurisdiction of the common law Courts did not, however, impair the concurrent jurisdiction of equity. Indeed, in many cases, especially where the sureties were numerous, and some of them were insolvent, or where some of the sureties had died, Courts of Equity were alone adequate to afford complete remedy. (Wright v. Hunter, 5 Vesey, 194; Wayland v. Tucker, 4 Grat. 268; Couch v. Terry’s Adm’rs., 12 Ala. 228.)

It is also true, that the doctrine of contribution applies equally between those who are original cocontractors: that is, between those who are jointly bound on them own account, (not being copartners) as it does between those who are cosureties: that is, jointly bound ti> answer for the debt or default of another. Thus, if a note were given for the cost of a partition wall by the owners of the adjoining premises, between which the wall was constructed, and one of the parties should pay the entire amount of the note, or more than his proportionate part, he could claim a contribution from the other. (Campbell v. Mesier, 4 John’s. Ch. 335.)

But the present case is not one for contribution between parties who have sustained a common loss upon a common liability. The note of the plaintiff and defendants, upon which the judgment was rendered, was given upon the purchase of real estate in which the parties took separate and distinct interests—the plaintiff one undivided half, and each of the defendants one undivided fourth; and between themselves the obligation of each was to pay for his respective interest. In giving their joint note for the whole amount of the purchase money, each party was principal for the amount of his own interest, and cosurety for the remaining interests. Thus the plaintiff was principal for one-half of the purchase money and co-surety with Webster for one-fourth of the same for Morrill, and cosurety with Morrill for one-fourth for Webster. (Goodall v. Wentworth, 20 Maine, 322.) When, therefore, the plaintiff paid the entire amount of the judgment recovered upon the note—or what is the same thing, when the proceeds of the property of the plaintiff sold under execution were applied to such payment—he became entitled to maintain an action against the defendants for moneys paid on their account. The demands which he could then assert were several in them character. They were demands not for contribution, but for reimbursement of moneys paid. The action should, therefore, have been against the defendants separately, upon the assumpsit which the law implies where a surety is compelled to advance money for his principal. (Parker v. Ellis, 2 Sand. 223; Odlin v. Greenleaf, 3 N. H. 270; Maurice v. Heffernan, 13 John. 59; Lapham v. Barnes, 2 Vt. 213; Frazier v. Goode, 3 Rich. 199; Babcock v. Hubbard, 2 Conn. 536; Ward v. Henry, 5 Id. 596.)

2. The action being upon the implied assumpsit, the question is, whether the contract is to be regarded as “ founded upon an instrument of writing.” The statute provides that “ an action upon any contract, obligation or liability founded upon an instrument of writing,” except in certain designated cases, shall be commenced within four years, and an action upon a contract, obligation or liability not thus founded, with certain exceptions, shall be commenced within two years. The question is, whether the present action is, in the meaning of the statute, “ founded upon an instrument of writing.” Our conclusion is, that it is not thus founded; that the statute by the language in question refers to contracts, obligations or liabilities resting in, or growing out of written instruments, not remotely or ultimately, but immediately; that is, to such contracts, obligar tions or liabilities as arise from instruments of writing executed by the parties who are sought to be charged, in favor of those who seek to enforce the contracts, obligations or liabilities. , The construction would be the same if the word “ founded” were omitted, and the statute read “ upon any contract, obligation or liability upon an instrument of writing.’? Such being our construction, we are of opinion that the statute created a bar to the present action after the lapse of two years from the thirtieth of July, 1856. The demurrer interposed by the defendant Webster was, therefore, well taken. One of the questions raised by the defendant Morrill, by his defective answer, also related to the bar of the statute. Although informally taken, the objection, supported as it is by the allegations of the complaint, was sufficient to uphold the judgment rendered.

Judgment affirmed.