Fletcher v. Grover

| Superior Court of New Hampshire | Dec 15, 1840

Woods, J.

This is an attempt, by the representative of one joint debtor, to recover of another joint debtor a sum of money, which he alleges he has been compelled to pay, and has paid, for that other ; claiming a right, under the circumstances of the case, to recover a moiety of the sums by him paid, as found by the case, on account of the joint liability of the intestate and defendant.

It appears from the case, that the intestate and the defendant were joint debtors, in two several sums, amounting in the whole to the sum of $2-996, which sums were allowed by the commissioner of insolvency, against the estate of Abbot, the intestate ; and, upon the decree of a dividend by the judge of probate among the creditors of the estate, the plaintiff was ordered to pay, and did pay, on said allowances, the sum of $314-82, and to recover one half of that sum this suit was brought.

And the question that arises upon the case is, whether the plaintiff is entitled to such recovery, it appearing that the plaintiff, out of the assets of the estate of the intestate, has paid less than one half of the amount of the joint debt of the intestate and defendant. It is a question of contribution among joint promissors.

The doctrine of contribution is the result of general equity, on the ground of equality of burthen and benefit; and is equally so among principals, as among sureties. 1 Maddock's Chancery 235—6, and note, (2.)

In the opinion, in Campbell vs. Mesier, 4 Johns. Ch. R. 334, that most learned and profound jurist, Mr. Chancellor Kent, has discussed the doctrine of contribution, in its great variety of application, with his accustomed accuracy and ability ; and affirms that it is “ founded not on contract, but on the principle, that equality of burden as to a common right is equity that “ contribution depends rather upon a principle of equity, than upon contract and, that “ the obligation arises, not from agreement, but from the nature of the relation, or quasi ex contractu."

Mr. Justice Story, in his Commentaries on Equity, (Story's Com. on Eq. 471-2) in treating of the doctrine of contribution among sureties, says, i[ In cases of this sort, the surety who has paid the whole is entitled to receive contribution from all the others, for what he has done in relieving them from a common burthen ; as all are equally bound and are equally relieved, it seems but just that in such case all should contribute in proportion towards the benefit obtained by all.”

In Exparte Gifford, (6 Vesey 805,) Lord Eldon held, that a discharge of one surety did not discharge the other sureties ; aud that, as each surety was bound to contribute his share towards the general payment, no one coaid recover over against another who had been discharged, unless for the excess paid by him beyond his due proportion. The creditor might, therefore, accept a composition from one surety, and still proceed against another to recover his full proportion of the original debt, without deducting the composition paid, if it did not exceed the proportion for which the surety was originally liable.

In Stirling vs. Forrester, 3 Bligh’s R. 591, Lord Redes-dale said : “ if the creditor discharges one of the co-parce-ners, he cannot proceed for the whole debt against the others ; at most, they are only bound for their proportion.”

And Mr. Justice Story, referring to the doctrine of the case of Stirling vs. Forrester, says: “ the same principle would apply to co-sureties.” 1 Story's Com. on Eq. 477-8, note 3.

And in the same note that learned judge most distinctly asserts and maintains the accuracy and soundness of the doctrine of the case of Exparte Gifford.

Pothier also, (Poth. on Oblig. n. 521) maintains the doctrine that a discharge of one surety discharges the other sureties for such proportion of the debt only, as, upon payment of the whole debt, they could have had recourse to him for.

In Batchelder vs. Fisk, 17 Mass. R. 464, it was held that in the case of an assignment of property from the principal to a surety, for the purpose of indemnifying him in part, such assignment will enure to the benefit of all the sureties, and that a plaintiff who has received money from such a fund can only recover from his co-sureties their just proportions, or aliquot parts, of the sum he may have paid beyond the sum so received from the property assigned.

The general doctrine deducible from, and the general position to be laid down, based upon and sustained by the well established authorities on this subject, would seem to be, that where joint promissors, or co-sureties, have received equal benefits, or been relieved from common burthens, neither shall recover over against another, unless for the excess paid by him beyond his due proportion, or equal share.

It appears from this case, that the intestate and the defendant each received an equal interest and benefit in the land purchased of Ayer, and that in that purchase the debt was contracted, in part discharge of which the sum was paid, of which to recover an aliquot part this action was instituted. Upon the authorities, then, by reason of the equality of benefit received, the intestate became liable in law and equity to pay one half of the debt incurred in the purchase. The equality of benefit imposed on the intestate the duty of sustaining an equality of burthen. And in thus paying the one half of the debt contracted in the purchase, he would pay for nothing more that the one undivided half of the land purchased of Ayer; for nothing, in fact, beyond the land which he purchased, and which was conveyed to himself by Ayer’s deed.

It further appears by the case, that the plaintiff from the assets of the estate has paid about one tenth part of the sum contracted to have been paid by the intestate and the defendant, instead of the one half thereof which the intestate was, upon every principle of equity, and by law, bound to pay.

Upon what principle, therefore, either of reason, justice or law, can the plaintiff claim to recover of the defendant for money paid by him as administrator upon the estate of the intestate for the use of the defendant ?

If a recovery be had, it must be on the ground of an implied promise arising upon the equity of the case, to pay money which the plaintiff has been by law compelled to pay for and on account of the defendant.

The facts, however, as we have seen, show no such payment for the benefit of the defendant, of any such sum of money which the defendant ought to pay, as between himself and the intestate. They in fact show only a partial payment of the proper debt of Abbot, the intestate, and a continuing liability of Grover, to pay the balance of the half of the debt which Abbot was bound, and if alive ought to pay, for and on his own account, as well as his own proper share.

But it is contended that the creditors of the estate of Abbot have a right to recover, through the plaintiff as their trustee, although Abbot himself might not be entitled to recover if he were living, and had made the payment which has been made by the plaintiff. We, however, are not aware of any principle upon which it can reasonably be held, that the administrators of deceased persons, or their creditors, can derive greater or other benefits from their contracts with, or the equitable relations in which they may have stood while living, to other persons, than the deceased would be entitled to, if still living.

Upon the whole, the court are clearly of the opinion, that there is no ground upon which the plaintiff can maintain this action.

According to the agreement of the parties, therefore, there must be

Judgment for the defendant for his costs.