*1 1923. TEEM, Vol. par- regard
judgmеnt to that, Without was entered. power police of and amend ties cannot revise by stipulation. State judg- rig'ht. the Commission
The order of affirming concur. it is itself affirmed. All ment of E. Trustee Under Will LOUIS DENNIG, LOUIS Appellants, F. B. MECK et SCHAEFER al., al. FESSEL et Two, April 7, 1924.
Division Surety: Against Payment by Action LIMITATIONS: Contribution: agains't right accrues Co-Sureties. A of action his of pays obligation, pays or he the common debt or co-sureties when making share, years after and is in five more than his barred plaintiffs, guarantors payment. where the with defend- So that company, paid obligations of a furniture its notes ants of contribution, brought barred their action 1919). (Sec. R. S. Limitations Corporation: Assignment: Distribution -: of Assets: -: Payment by Surety. plaintiffs Debts Where defendants guarаntors of a of which all were all debt, stockholders, plaintiffs paid its after which it were distributed, assignment its net assets the ac- made compel plaintiffs’ cause of action to from de- crual postponed assignees time had was not when fendants corporation and ascertained administered the assets the net among subjeсt stockholders, amount to distribution but thereof Upon plaintiffs payment accrued the the debt. moment guarantors compel debt some of the their con- immediately, arises tribution security thereupon corporation assets of become the re- guarantors payment. imbursement of all who contribute no event of action does a contention the cause did arise corporation until were administered assets of and the net subject ascertained, amount thereof to distribution was ham* a upon company reasonable basis to rest where turned over 'to plaintiffs indemnifying money, securities, neither nor accounts or notes. Operation. Act 3.-: of 1919: Rеtroactive The Act (Sec. 1315, 1919), providing “the cause of shall S. R. OF MISSOURI, SUPREME COURT Dennig v. Meekfessel. wrong or the technical be deemed to is done accrue when the damage duty occurs, breach therefrom of contract but when capable ascertainment,” prospective is in its sustained operation, application en- barrеd before and has no to actions *2 actment; period to a cause of limitations does it nor extend compel co-sureties, for action of a from his contribution liability action accrued the their his cause of ascertained and paid the moment he debt. Pleading: -: Demurrer: and Reconsideration. The 4. Overruled petitiоn on its action was barred face showed the cause of special Limitations, defendant filed a statute, alleging which demurrer it was barred plead- specifically Thereupon filed overruled. answer was court ing as a trial the court sustained the statute defense. At the evidence, objection for reason that the introduction of petition was barred said on its face that the action showed equivalent Held, re-consideration that this was to a statute. special Rehearing.] sustaining Motion for a demurrer. [On Exception. Special A Demurrer: matter which it -: -: 5. accruing prevented of action from must be the cause is claimed stated, special petition, not so a demurrer and if stated destroy pleading Limitations as a bar is available to the Statute the cause of its face shows- that which on barred. 27; 2, Contribution: sec. 13 J. 2: 13 C. J. C. 1 and Headnotes Cyc. 991; of Actions: Limitations 25 3 to 5: 833. Headnotes
sec. Cyc. Anno); 5, (1926 Cyc. 25 1398 25 City Appeal Louis Circuit from St. Court. —lion. Judge. Hall, Robert W.
Affirmed. appellants. for & Stamm
Frank paid principal’s obliga- (1) their who Guarantors prin- all the assets of their have received tion and who purposes cipal obligor, trustees for as their all the liquidation, for creditors trustees are obligor, principal are also trustees their co- they guarantors seek contribution. As such from whom Val. 527 they hold said assets for the benefit of trustees all, though they have theretofore even the whole debt they which both their were liable, they against maintain an could not action for co-guarantors pending trusteeship, until such they they show that time could had fulfilled their trust and that the satisfy so received them had failed to sought. debt for which contribution is Brous- App. Weelburg, v. Mo. Mason, 281; sard 187 Sanders v. 273; Ind. G-ibsonv. 28 107 L. Sheehan, R. A. 401; Chapman, Chilton v. 13 Mо. Jamison 470; v. Glasscock, Mo. 29 Tolle v. 191; Mo. Boeckeler,-12 54, 63; Mc- Phillips, Cune v. 45 Mo. Belt, 174; Harrison v. Hampton Phipps, v. 108
520;
U. S.
L. Ed.
719;
Kelley
Ramsey,
In re Estate of
Koch, Wis. 548;
v.
Ky.
Neely
Davis v.
77 N.
Toulmin,
Y. 280;
*3
Poyntz,
(Ky.)
519;
32 W. Va.
Morrison v.
Bee,
7 Dana
(N. Car.)
Spencer
Hall
8
307;
Robinson,
Ired.
v.
Law
56;
Suretyship,
(2)
sec. 171.
A
cause of action to en-
co-guarantors
force contribution from
does not accruе
security
in favor of
who hold
for their
subject
until the net amount
to
debt
contribution has been
definitely ascertained. R. S.
sec. 1315; Pendleton
(Wythe Va.);
3
538
v.
Call.
Preston
Lomas,
4;
v. Pitch,
Cloney,
(3),
Y.
v.
41, 53;
137 N.
objection
Tutt
528 OF SUPREME COURT McCarthy, respondents. & Zachrits for Morris paying guarantors, (1) Appellants, guaranty bring June and did not contribution suit until accordingly June 8, 1920, and cause is barred Sec. Petty App. R. 1919. v. S. Mo. 166 98 Bur- ; Tucker, y. rus 215 Mo. 240 Cook, 505; Yore v. Yore, Mo. 451; Singleton Ryan v. 45 Mo. Townsend, 380; Krusor, v. 76 Mosely App. App. 499; Mo. v. 59 Mo. Fullerton, 143; Gregg App. Thompson Carroll, 476; Brokmeyer, v. v. Brown, Corbyn App. App. v. 84 Mo. Mo. (2) appellants forth The authorities set are point not thоugh and do not bear out their contention. Al- appellants,
one of the Gustav Bisehoif, was named principal’s as one of the for the trustees benefit of its twenty place creditors this did not take payment until months after principal regardless obligation, ’ security appellants much came how or when into hands, stopped this would hаve Statute of Limitations prevented running filing and would have Mosely Mo. Fullerton, suit for contribution. (3) Respondents had a to renew their “objection demurrer in the of an form introduction testimony petition.” sustaining under the objection appellants’ of this and the disallowance of offer proper. Conway, proof Pratt v. Mo. 299. having C. Two cases the same title HIGBEE, argued They together. companion and submitted are *4 legal questions involved are the same in cases, They both. are actions for between co- guarantors.. petitions 8,1920. The were filed Plain- June April paid obligations in one case on tiff the common 14, 1913. Prior and in the other on June to the 1913, 30, petitions ground on the trial formаl demurrers petition, on the face of the action, was barred each were Statute of Limitations overruled. a ore demurrer, tenus, was sus- trial, however, At the judg- and dismissed, each in case, tained Vol. plaintiffs accordingly, ap- from which
ment rendered pealed. very lengthy, petitions, may are which be sum-
marized : Schaefer, Bischoff,
Louis Gustav Gustav Bischoff, together J. Bisсhoff and H. Buettner, Heinrich with Jr., F. B. Theodore Meckfessel, the defendants Crusius, and in H. were stockholders the J. Buettner W. F. Eicks, Carpet Company, corporation doing & busi- Furniture city company being Louis. The of St. ness in year these stockholders 1909 ar- financial straits, ranged with the Manchester Bank and «tor loans city, both of and Bank of said exe- National Cоmmerce, obligation repay to each bank a written all cuted to by the loaned, $30,000 sums not to exceed Manchester Bank Commerce. and The Man- Bank, $150,000 accordingly Company Furniture Bank loaned the chester $21,500,-taking its five notes therefor. at various times totalling also made The Bank of Commerce loans $145,- company, taking еach for the 29 notes from sum 000, Heinrich Louis Schaefer and Bis- Thereafter $5000. representatives and Bisch- Gustav died, choff April paid on Commerce, the Bank on demand, off, principal -notes, $145,000, representatives Bischoff and and Gustav Gustav said paid the Manchester Bank Jr., on June 30,1913, Bischoff, having principal all interest $21,500, of its been notes, pаid J. H. Buettner both of notes said dates. on sets paying subsequently paid of these sums his share May July guarantors. 17, Between payments Company on made various the Furniture totalling $2221.55, and on the Bank notes, Manchester notes, $16,844.21. Bank Commerce Company February, made Furniture Dennig assignment to L. E. assets of its all benefit of its cred- trustees, Bischoff, Gustav paid, on Mаnches- $10,182.06 itors. Dividends the Bank Commerce and $68,669.49 ter Bank loans on March The last dividend loans. Sup. —34 *5 SUPREME. OP COURT MISSOURI,
Dennig v. Meckfessel. having appeal Bischoff died Gfustav since the taken, representatives personal having and his entered their appearance, the actions have been revived consent. parties brevity’s spoken plain- For sake the will be of as and defendants. tiffs assign Appellants
I. ruling error in the the court that the actions barred the Stat- (Sec. 1909). ute of Limitations R. S. Their con- guarantors tention that all the were officers and corporation; paying guar- stockholders of that the plaintiffs, all received of the assets ¿)f antors, their principal obligor, all trustеes for creditors and as trustees for their and as such against not maintain an could action for contribution co-guarantors pending trusteeship and they until could that the show received them satisfy insufficient to debt and until net subject definitely amount, to contribution had been as- on March when certained, final divi- paid. dend was plaintiffs paid the сommon debts or April guarantors, one on the other
on June right
The rule is that
of action accrues
when
surety pays
obligation
paid
debt or
common
or has
Petty
[13
more than
of it.
C.
his share
J.
v. Tucker,
101.]
(adopting
Cook,
In Burrus v.
rogating creditor’s himself to the will *6 rights.’ Suretyship subrogate [Brandt Mm on to those (3 Ed.) sec. 339.]” plaintiffs’
II contention is that cause The further . assignees of action did arise until the Company had admdmstered the the Furmture Assets , , , Corporation: . n Subject til© net to COIltn- USSetS£1110. RUlOUIlt Indemnity. been hution had ascertained. might contention at- once for the dismiss tMs We Company FurMture never turned over reason the plaintiffs. Nearly years two or securities to assets Company payment the Furniture of the аfter assignment for the benefit of all its cred- made a agreed as- said all the stockholders this itors. It is to. mamly signment that the assets consisted of notes and indemnity.; an tMs was does it accounts. Assume and delay plaintiffs must their actions until it that follow pay? will the assets This what dividends ascertained is theory plaintiffs were entitled to is unreasonable; obliga- thеy the common the moment tions. authority
“Although on the is a conflict of sub- there authority weight be that fact ject, seems to pays has in his hands an the debt who that the indemnity money, or valuable, and more other than less co-surety suing prevent for contri- Mm will recovering then entitled amount as he is bution, irrespective may afterwards be real- that оf the sum to, indemnity; be accountable to he will but from the ized proper proportion co-surety of whatever sum for a ’ ’ indemnity. may [Brandt from the realize he afterwards (3 Ed.) Suretyship 300.] sec. and Guarantee on Meltinsky, Pa. it was Friedman said: simple present case is a one in the
“Plaintiffs’ claim urged that it in- defendant it is for but contribution; receipts plaintiffs accounting by volves property expenditures to, referred that above OP MISSOURI, SUPREME COURT bag jurisdiction. equity Undoubtedly prop- alone security, having paid erty but, held as defendant noth- ing yet position in a as an is not to indorser, share there- payment judgment in. On case this he will be property; entitled an undivided interest in very properly suggests trial court the execution protect can be so controlled as to his interest in that re- gard. paid nothing at the trial defendant But had legal equitable his indorsements and had no claim to nothing to set off. upon payment “The to contribution arises pays may the common he who burden; and so recover jointly waiting from those liable with him without upon property may realize have come to his hands *7 through payment. The ofwill course stand security proportion in common to as all their contri ‘ surety bution to the burden. The not barred is from his merely remedy by in contribution fact that he holds security, and there can be no set-off on account of the indemnity by unless value is ascertained, either re ’ ducing money Suretyship, it or otherwise, Stearns p. plaintiff, 494. The in an action for contribution, after having paid money compelled out his is not to wait until upon indemnity, he can realize collateral some while his co-surety paid nothing. has This would not make their equal. [Williams burdens Cal. Riehl, 365, 371.]” ruling Mosely The same was made in v. Fullerton, App. City Appeals. the Kаnsas Court op- Broussard v. Mo. Mason, is not posed question to this view. The of limitation was involved. In that case fraud and Broussard, chican- ery, principal, wrecked the corporation, Texas which he and Mason were accommodation indorsers, and wrongfully default. caused the He converted the assets unparalleled debt, with аnd, effrontery, came into Missouri sued for contribution. “A cannot have contribution if the default resulted ' wrongful Cyc. [32 285.] his act.” Broussard president manager-of corporation; he oc- Yol.
eupied being of trust and a relation confidence. Mason, accounting to an for bis in- was entitled stockholder, corporation. in the terest prоviso Appellants
III. further contend that Revised Statutes the cause of Section wrong “shall to accrue when the is not be deemed done duty breach of contract or the technical . , Acts of 1919. i-, -i . r. -i damage but when the therefrom occurs, is capable pro is of ascertainment.” This sustained and May was enacted and became effective viso the section prospective operation. in its The and is actions 12,1919, enactment and the contention barred before its need were proviso applicable, were But, if this not be considered. plain by its of action it terms causes accrued paid, liability as each when the capable guаrantor then of ascertainment. Railey, judgments concurs. C., are affirmed. Higbee, opinion foregoing
PER CURIAM: The adopted opinion All of the of the court. C., judges concur. Releasing. Motion for
On re- Appellants, motions HIGBEE, C. payments hearing, of dividends contend that legal ef- Company assignees were, of the Furniture *8 co-guaran- payments сo-guarantor to other by one fect, eventually recov- to be of amount in reduction the tors legal of effect way by had contribution, of ered running Limitations. stopping Statute of the Paragraphs proposition I in considered This was opinion. and II of Limita- Statute is that the contention
The second gen- a special on avаilable not and is defense, is tions erred the court demurrer, eral denial objection of evidence. sustaining introduction an in arose action petition cause that the showed The 30, on June April in other in one on case SUPREME OF MISSOURI, COURT Maryland Dolph Casualty v. Co. general assignment February, was made in petitions
and the final dividend March 22,1920. speciаl filed 1920. A June 8, demurrer was filed in ground petition on the each case on its face by five-year the action barred showed Thereupon and overruled. Limitations, answers were pleading specially filed the statute. At the trial objection court sustained an in each case to the intro- petition evidence, duction for the reason that the face showed the action was barred equivalent Statute of Limitations. to á This re-con- sustaining special sideration and demurrers. Plain- pleaded assign- in tiffs, order avoid the statute, payment assignees, ment and the of dividends interrupt running which we have held did not statute.
In v. Cook, Burrus 215 Mo. we held that the de might special fense of the statute bе raised demurrer. page On if 503, Lamm, J., “And, said: the cause of ac may exception tion such that it be some obviated in ,the facts stated statute, should show exception. exception relieving words, other plaintiff pleaded by from the statute should be him.” opinion by White, This was affirmed in an J., in Am. Plumbing Heating Radiator & Co. Co., exception pleadеd, being 211 S. W. not Such ruling there was no error in the of the court. The mo rehearing Railey, sitting. tions for C., are overruled. opinion foregoing PER CURIAM: The of Higbee, adopted opinion is C., as the of the court. All of the judges except sitting. concur, White, J., CLIFFORD M. MARYLAND CASUALTY DOLPH v. Appellant.
COMPANY, April Two, Division Indemnity judg- 1. JUDGMENT: Conclusiveness: Insurance. A final parties the same ment between former n conclusive