157 A. 351 | Pa. Super. Ct. | 1931
Argued May 4, 1931. This is a suit for contribution brought by one of two joint payees of a promissory note against the other. The note was as follows:
"McKeesport, Pa., May 29, 1927, $1,870 sixty days after date I promise to pay to ...... the order of J.B. Greenwald and Louis Weinberg, eighteen hundred seventy and no/100 ...... dollars, at Peoples City Bank, McKeesport, Pa., without defalcation, value received. Joseph Brown."
It was indorsed as follows: "J.B. Greenwald, Louis Weinberg."
The note was the last of a series of renewals. It was not paid at maturity and was duly protested. The notary mailed notice of dishonor to the plaintiff and defendant in separate enclosures but sent both to plaintiff's address; there is evidence that the bank did not have defendant's address, (he did not live in McKeesport), and that the efforts of the notary failed to ascertain where he resided. When plaintiff received the notice, he talked with defendant about paying the note, and defendant replied that he could not pay and that plaintiff might do so. Plaintiff accordingly paid the bank, and brought this suit for reimbursement of one-half of the amount he paid. He averred that he was compelled to pay, and has judgment on his verdict. Defendant has appealed.
The affidavit of defense made no issue (cf Buehler v. Fashion Plate Company,
Appellant's liability to plaintiff depends, not on the note or the indorsements under the negotiable instruments law but on his relation with plaintiff as joint payee; they did not intend that liability inter se should depend on the negotiable instruments law. Their joint relation imposed equality of burden; either, compelled by a holder to bear it all, may require contribution of the other. The note is evidence in the suit, but it is not the foundation of the right to recover. "Contribution," in the often quoted phrase of Lord Chief BARON EYRE, "is bottomed and fixed on general principles of justice and does not spring from contract, though contract may qualify it. ....." (Dering v. Earl of Winchelsea, 1 Cox Ch. 318, 29 Eng. Rep. 1184); the obligation, it is said, arises from "the equitable principle that `in equali jure, the law requires equality. .....'": Wolmershausen v. Gullick L.R. 1893, 2 Ch. 514, 522. That doctrine has so long been part of the law that persons engaged as co-obligors, in the absence of express understanding otherwise, are held to have dealt with it as an implied term in their relations. It is applied in Pennsylvania, both in equity (Guckenheimer v. Kann,
Judgment affirmed.