51 N.H. 613 | N.H. | 1872
The whole amount paid to the bank by the sureties, from the first, is $5,395.92. All the adjustment of this sum that has taken place among the sureties is the payment by Brown to the plaintiff, Currier, of $450 ; and Brown is now, and was at that time, out of the State.
Since the original judgment was rendered in 1859, five of the sureties, namely, Bliss, Gay Farley, Charles Flanders, and Wallace, have died, and their estates have been settled as insolvent; three more, namely, Brown, Newman, and Geo. M. Flanders, had left the .State
Two of the parties not represented here, namely, Charles Flanders and Moore, have paid more than their proportion of the debt. But the levy, by which Charles Flanders was compelled to pay $1,974.25, was made April 22, 1859, more than thirteen years ago ; and he died about a year afterwards, that is, twelve years ago, and his estate has been settled. Under these circumstances, in the absence of proof that a valid claim for contribution exists in favor of his legal representatives, we shall assume that there is none. Should it be made to appear that the faet is otherwise, it would be proper that the sum paid by him should be reckoned into the adjustment. But leaving it out, we have only to consider the rights of this plaintiff and defendant as respects the last payment of $3,000, made by the plaintiff and Moore Dec. 20, 1864. Brown was, at the commencement of the suit and at the time of the payment, out of the State, and the plaintiff was not bound to follow him before calling upon the sureties who were within the State for contribution. Boardman v. Paige, 11 N. H. 431.
What was the effect of the payment by Brown of $450, and the agreement by the plaintiff thereupon not to call on him for any further contribution on the amount he had paid? We think its effect, so far as the other sureties are concerned, must be regarded the same as though he had paid in full the amount of contribution due the plaintiff from him. This was clearly its effect between Currier and Brown; it was an adjustment and compromise by which the claim was extinguished, precisely the same as though it had been paid; and we see no reason why the same effect should not be given it, as regards the other sureties, that it had as between the parties themselves.
The payment of $3,000 was not made until long after the death of Bliss, Gay, Farley, Charles Flanders, and Wallace, and after their estates had been settled as insolvent. It was no more incumbent on one than another of the sureties, who still remained liable, to pay the debt and present his claim to the commissioner on those estates; and we think those estates are not to be taken into account in the adjustment now to be made.
The basis, then, upon which the amount the plaintiff is entitled to recover in this suit is to be reckoned, becomes plain and simple. It is by considering that there were four persons bound to carry the burden of paying the $3,000 equally between them, namely, Currier, Baker, Moore, and Brown. This would make the share of each $750. Currier paid $1,800; deduct his proportionate share, $750, there is left, $1,050, which he is entitled to recover by way of contribution from those who have not paid their shares.
But we are to consider that he has received one half of this sum from Brown, because, so far as the other sureties are concerned, his release of Brown was equivalent to payment; and this leaves the other
It may be remarked that a release by one surety of his claim against another has not the effect, as argued by the defendant’s counsel, to discharge all the other sureties from any demand for a greatér amount than the sum accepted in satisfaction from the one settled with. It simply operates, like a payment, to release the other sureties from their liability to contribute to make up the share so adjusted. Hodgson v. Hodgson, 2 Keen 704; Fletcher v. Grover, 11 N. H. 368. The question is not as to the effect of the discharge of one of the sureties by the creditor upon the liability of the others to pay the debt. The authorities upon this subject may be found collected in notes to 1 Story’s Eq. Jur., sec. 495, et seq.
It is quite probable this adjustment may not be as complete and sat-' isfactory as would have been attainable by a bill in equity, whereby all the parties and all the interests to be affected should have been brought before the court; but, upon the facts agreed, we see no other result possible but that at which we have arrived.
It is obvious that in case Brown remains without the State, or returns and becomes insolvent, the defendant may be liable to settle with Moore upon the basis that there are but three sureties liable to contribution ; and such a result might give rise to further question as to the liability of his plaintiff" over for contribution to Moore. But Brown may be followed by Moore or the defendant to another jurisdiction, and his share be collected, or it may be adjusted without suit. These are contingencies which we see no way to provide against in this suit.
In any view that can be taken, it is very plain that the defendant suffers no legal wrong ; for the plaintiff, as well as Moore, might have recovered contribution against him on the basis that but three persons were liable ; and in that event his share would have been $1,000 instead of $750, to which it has been reduced by the adjustment between the plaintiff and Brown.
■ According to the agreement, there is to be judgment for the plaintiff for $525, and interest from the time of the payment, which is understood to be Dec. 20.1864,