Allen Curtis, Ellis P. Earle, and Howard Paschal instituted this suit against Scott E. Welker for contribution. A motion to dismiss the bill was sustained, and the plaintiffs appeal.
Appellants and the appellee, with four others, constituted the board of directors of a corporation having its principal place of business in New York City. The treasurer of the corporation misappropriated its funds, and the corporation brought action against the directors to recover the amount of the peculations. In the action the corporation charged that the loss sustained by it through the treasurer’s dishonesty was wholly due to the negligence of each and all of the defendants in the performance of their duties as directors. Only the appellants were served. They defended on behalf of themselves and the other directors. Appellee, though not served, contributed to the expense of the defense. A judgment was entered against the served defendants, which, after some modification, was affirmed by the Appellate Division of the Supreme Court of New York. Tri-Bullion Smelting & D. Co. v. Curtis,
From the foregoing statement it is manifest that the appellants and the appellee, as well as the other directors, were in pari delicto. Each was charged in the action of the corporation against them with having neglected his official duties as director and with responsibility because-of this neglect for the losses which the corporation had sustained. By the judgment of three courts that charge was found to be true. There-is, therefore, no difference in, character or degree between the negligence chargeable to the appellants and that with which the appellee is charged, as indicated by the bill. Under those circumstances may the appellants-have contribution ?t
There is much equity in the claim made by the appellants, but we are not free to enforce it. The Supreme Court of the United States, in Union Stock Yards Co. of Omaha v. Chicago, Burlington & Quincy Railroad Co.,
“* * * the general principle oí law is well settled that one of several wrongdoers cannot recover against another wrongdoer, although he may have been compelled to pay all the damages for the wrong done. In many instances, however, cases have been taken out of this general rule, and it has been held-inoperative, in order that the ultimate loss may be visited upon the principal wrongdoer, who is made to respond for all the damages, where one less culpable, although legally liable to third persons, may escape the payment of damages assessed against him by putting the ultimate loss upon the one principally responsible for the injury done.”
And it held, as we have just stated, that the fact that the first duty-was required of the railroad company did not bring the terminal company within the exception. In the case before us the culpability of all the defendants was the same. It cannot be said that one was more responsible for the injury-than the others; therefore it is governed by the general rule. In an earlier decision, Washington Gas Co. v. District of Columbia,
Counsel for the appellants urge with much force the proposition-that, where the violation of law or of duty was not intentional, contri
An effort is made to distinguish the instant case from the Stock Yards Case upon the ground that the principal wrongdoer here is the treasurer, who abstracted the funds. But we do not think the distinction is well taken. We are dealing here with the law applicable to joint wrongdoers. The treasurer was not a joint tort-feasor with the directors; therefore his act cannot be considered in determining the issue.
Because the decree of the lower court is in accordance with law, it is affirmed, with costs.
Affirmed.