Goodall v. Wentworth

| Me. | Jun 15, 1841

The opinion of the Court was by

Weston C. J.

Each one of the signers of the notes to Black was principal for one third of their amount, and co-surety for the other two thirds. The defendant being principal for one third, the plaintiff and Jordan became his sureties, for the payment of his proportion. The plaintiff, having sold his share to Jordan, agreed in writing, that if the latter would pay his proportion to Black, he, the plaintiff, would allow the amount, as a part of the purchase, money. By the proportion of the plaintiff, thus provided for in that agreement, must be understood that.part, for which the plaintiff was liable as principal; for with regard to the'defendant’s part, it was doubtless expected that he would pay it himself. Under that agreement, then, Jordan had no claim to be allowed by the plaintiff any sum, beyond the one third, which he had paid for him.

But Wentworth having fathed to pay his part, Jordan procured Dwinel to pay it, which was the same thing as if Jordan had paid it. It was paid out of his funds, which were due to him from Dwinel. The plaintiff and Jordan, being co-sureties for Wentworth, the whole amount was paid by Jordan. This gave him a right to call apon the plaintiff for contribution. This claim the plaintiff could not legally resist. It was voluntarily paid, but in pursuance of a legal obligation. The money thus paid by him, was paid for Wentworth, and thereupon an assumpsit was raised on his part, by implication of law, to refund the money. There existed between the parties all the privity, which arises between sureties and their principal. If joint, or co-sureties pay money for their principal, they have a several right of action against him for reimbursement. Gould v. Gould, 8 Cowen, 168.

Odlin v. Greenleaf, 3 N. H. R. 270, is a case exactly in point. One of two sureties, on a negotiable note of hand, had paid and taken it up; and he had received from the other surety, the plaintiff’s testator, half the amount by him paid, by way of contribution. For the moiety thus paid, the plaintiff sustained an action against the defendant, the principal. And it was there intimated, that a surety, who pays, may have a remedy against his co-surety, without siiowing an inability in the principal to pay. . But it was held to be settled law,_ that a surety may pay the demand at its maturity, and be entitled at once to his remedy against his principal.

Defendant defaulted.