33 Ky. 160 | Ky. Ct. App. | 1835
delivered the Opinion of the Court.
John Yantis sued Samuel Lusk, administrator cum testar mentó of Joseph P. Letcher, deceased, in assumpsit, for one half of a sum of money which he (Yantis) alleged that he had paidto Nelson Burdit, in discharge of a joint and several promissory note, which had been given by Benjamin F. Yantis, as principal, and the said John Yantis and Joseph P. Letcher, as his sureties.
Having proved, on the trial upon the general issue, that, after the note became due and payable, the testator and co-surety Letcher had regularly notified the obligee, *n wrhing, that, unless suit should be brought on the note within sixty days, he would consider himself discharged, anc[ a[so that suit was not instituted until more than six . months after the service of the notice, and was then l3roug^lt against John Yantis alone — Lusk, the plaintiff in error, asked the Court to instruct the jury, that the notice and failure to sue to the first term, or within sixty days after the service of the notice, not only exonerated Letcher from liability on thé note, to Burdit, but presented an effectual bar to this suit for contribution. But the court refused to give the instruction; and instructed the jury, that the notice did not “release the liability to the co-surety,” and that he had a right (o recover, in this action, one half of whatever he had been compelled to pay to Burdit, unless the suit had been delayed at his instance or request. And thereupon verdict and judgment were rendered in his favor, for two hundred and eighty dollars, in damages.
As the notice seems, from the proof, to have been such as is prescribed by the fifth section of the act of assembly of 1828 (2 Stat, Law, 1442,) it is the opinion of this Court that, if the note was given since the date of
The only reason why a surety is entitled to contribution from a co-surety, is because the burthen is joint, and, as between themselves, both of Ahem are bound equally to sustain it. When one discharges an obligation binding in equal degree oh himself and another, he has paid a debt for both, and is entitled to restitution from the other to the extent of his ratio of liability, as between themselves. But unless when payment was made by one, another was also under some obligation to pay the same debt or some part of It, he cannot, by mere Implication of law, be liable for contribution for an act ■done without his privity or authority.
If Letcher was exonerated from all liability to the obligee, we cannot perceive any reason for presuming that he was responsible to Yantis, who elected to remain bound for the debt. He could not be responsible on the ground that, at the time of payment, he was bound as a-co-surety. Nor could he have been liable in Consequence of any agreement for contribution implied by the act and at the time of signing the bond to Burdit.
For, had there been any such implied understanding, it was qualified by the contingency contemplated and provided for by the foregoing enactment of 1828; and, of course, the perfect exoneration of Letcher from all the consequences of signing the bond would not impair the obligation of any contract.
Had Burdit expressly and bona fide released Letcher, and had Yantis afterwards paid the debt, he would have had no right to claim any contribution. And, if Letcher was released by operation of law, it seems to us that his exoneration was, in all respects, equally as perfect, comprehensive and effectual — and even more certainly so.
The statute was intended for a practical and beneficial purpose; and is peremptory, and conclusive as to the surety’s discharge from his preexisting obligation for the debt; and not being liable for any part of the debt, he would not, by legal intendment, be • liable to contribution for any payment of that which he did not owe.
But the record does not show the date of the obligation toBurdit; and therefore, as the statute of 1828 ap
The Circuit Judge also erred in refusing to exclude the testimony respecting an alleged payment by Yantis, to the attorney of Burdit, in the State of Missouri.
The only testimony as to that fact, was that the attorney had informed Burdit by letter, that he had collected the debt from Yantis.
Now proof, that Burdit himself had said, that Yantishad paid him, would not have been legal evidence of the fact of payment, against a stranger to the transaction, as Letcher or his representative was. And, a fortiori, the fact that Burdit’s attorney had said that Yantis had paid him, is not evidence against the plaintiff in error,, of the fact of payment.
Wherefore, it is considered by this Coiirt, that the judgment of the Circuit Court be reversed, and the cause remanded for a new trial.