260 Pa. 312 | Pa. | 1918
Opinion by
This is an action of assumpsit for contribution between joint endorsers of promissory notes. The parties, plaintiffs and defendant, were stockholders in the McKeesport Natatorium and Medical Institute. As early as 1905 the corporation was a borrower of money from the Peoples Bank of McKeesport, for which it gave notes with certain of its officers and stockholders as accommodation endorsers. For their protection the corporation in December of that year gave them a second mortgage of fifty-one thousand dollars on its McKeesport property. In January, 1908, such indebtedness was forty thousand dollars; and the endorsers were Henry Firestone (now deceased), W. M. Downey, Henry Friedman, Max Friedman, Jacob Roth and S. Maltinsky, the defendant. At that time they entered into a written agreement, to the effect that among themselves each would pay one-sixth of whatever loss might result from such endorsement; and also that they should share equally in the mortgage and other securities pertaining to such indebtedness; so
There was another note of twenty-five hundred dollars, of the same date, made and endorsed by the same parties for a like purpose and discounted by the First National Bank of Sutersville. This note also went to protest for the same reason and was later paid by the parties who paid the other note.
In June, 1911, Mr. Firestone gave the Peoples Bank a mortgage of $32,500 on the property as additional security for the balance of the forty thousand dollars then remaining unpaid; which balance was paid before, and the mortgage satisfied of record after, this suit was brought. The evidence tends to show that the property has not paid expenses since conveyed to Mr. Firestone. Defendant has never requested that a share of the property be conveyed to him, although plaintiffs are and have been willing to do so on his making pro rata contribution to the indebtedness. On the theory of Mr. Downey’s in
The notice of the protest of the larger note, properly addressed, was left in the place in the notary’s office where mail was usually collected by the postman. That was not a mailing of the notice as required by statute, and the jury were so instructed. If the case turned on that question it would be resolved in favor of defendant. But the jury found on sufficient evidence that defendant actually received his notice, hence the question of mailing became unimportant. Aside from that, the responsibility of the endorsers here was mutual, they each and all stood as sureties for the corporation. Such relation never requires demand and notice: Marquardt’s Est., 251 Pa. 73, 79.
While in general equity has jurisdiction to enforce contribution among those jointly liable, such jurisdiction is not exclusive, especially where the right grows out of a contract express or implied. “The right to contribution in such case is founded upon equitable principles and was originally enforceable only in a court of equity. Now, however, it may be enforced in a court of law, if a contract to make contribution can be implied from the circumstances which create the common liability, as where one of two sureties is compelled to discharge their mutual undertaking to answer for the default of their principal. But a court of equity still has jurisdiction to enforce contribution, and in many cases it is the only court affording a convenient and complete remedy therefor” : Shillito v. Shillito, 160 Pa. 167, 170. Plaintiffs’ claim in the present case is a simple one for contribution ; but it is urged for defendant that it involves an accounting by plaintiffs for the receipts and expenditures
The right to contribution arises upon payment of the common burden; and he who so pays may recover from those jointly liable with him without waiting to realize upon property that may have come to his hands through such payment. The property will of course stand as security common to all in proportion to their contribution to the burden. “The surety is not barred from his remedy in contribution merely by the fact that he holds security, and there can be no set-off on account of the indemnity unless its value is ascertained, either by reducing it to money or otherwise”: Stearns on Surety-ship, p. 494. The plaintiff, in an action for contribution, after having paid out his money is not compelled to wait until he can realize upon some collateral indemnity, while his cosurety has paid nothing. This would not make their burdens equal: ‘Williams v. Riehl, 127 Cal. 365, 371. Defendant, who first broke the contract between the endorsers by refusing to pay his share or to renew the notes, is not in a position to complain because his coendorsers thereafter failed to comply with its terms. The jury found that the foreclosure of the mortgage was bona fide and not collusive; and, when the declaration of trust was made, the defendant could not be named as a beneficiary for he had paid nothing. A claim for contribution is subject to the statute of limitations but not lost by laches, and nothing is shown that as mat
Defendant’s offer to show that plaintiffs had taken possession of personal property of the corporation was properly rejected. As suggested by the trial court, such fact would be pertinent in an action to which the corporation was a party but could have no bearing in this case. Plaintiffs have never refused to grant defendant a share in the property or to account for same. Because of his default they had to take a course somewhat different from that contemplated by the contract, but he has not been released from his obligation as coendorser. The jury found the controverted questions of fact against the defendant.
The assignments of error are overruled and the judgment is affirmed.