240 N.W. 722 | Iowa | 1932
It is alleged that in May, 1921, the defendant-appellant F.C. Klipp, together with A.H. Licht, August Freund, P.V. Dyke, C.J. Pritz, Charles Conrad, Herman Wiebel, William Niermeier, Henry Mente, Otto Schneider, A.J. Charlton, Herman Cassier, Paul H. Kemmann, H.R. Griesbach, Fred Von Roden, Dick Schlueter, L.D. Rixe, George Deininger, D.W. Conrad, L. Hoeltje, Hubert Hoeltje, plaintiffs-appellees, and Charles Reinking and Henry Hoffmeier, "wrongfully, unlawfully, wickedly, and maliciously combined, confederated, and conspired together, each aiding, assisting, and abetting the other, to libel, defame, injure, and destroy (one Henry W. Mowry) in his standing as a citizen and member of the community in which he then lived, and to cause to be withdrawn from him the confidence and association of his neighbors and associates." Both Charles Reinking and Henry Hoffmeier are now deceased, and the plaintiff-appellee Lena Reinking is the administratrix of Charles Reinking's estate, and the plaintiff-appellee Ida Hoffmeier is administratrix of the Henry Hoffmeier estate.
Suit was brought by the said Henry W. Mowry against the alleged conspirators, and judgment was recovered in the district court of Jones County. An appeal from that judgment was taken to this court by the alleged conspirators, which resulted in a reversal. Mowry v. Reinking,
For the purpose of defending in those conspiracy trials, the appellant, appellees, Charles Reinking, and Henry Hoffmeier employed attorneys and counselors. These attorneys and counselors were C.M. Dutcher, of Iowa City, Don Barnes and *1073 Otto L. Schluter, of Cedar Rapids, and Park Chamberlain, of Anamosa. The fees of those attorneys and counselors, together with their expenses, amounted in all to $16,427.59. Those attorney fees and expenses were no part of the judgment or costs rendered in the conspiracy case.
Appellees were compelled to pay for those legal services in full. Appellant paid no part thereof. Consequently this proceeding was commenced by the appellees to compel the appellant to contribute his portion of the foregoing fees incurred for the common defense of the alleged conspirators, and, as said in the preliminary statement, the district court rendered judgment accordingly. Of that judgment, however, appellant complains.
[1] I. No exception is taken by appellant to the amount of the attorney fees and expenses, nor does he say that the services were not rendered. His objection at this juncture is that contribution cannot be obtained from him by the appellees because the attorney fees and legal expenses were incurred in defending a tort committed by joint wrongdoers.
In view of the fact that the alleged conspiracy was committed by appellant and the other above-named conspirators, he insists that it would be against public policy to allow a contribution for the attorney fees paid by appellees. To put the thought differently, appellant argues that contributions between joint tort-feasors can not be enforced at law, and in a cause void at law, equity can not give relief. See Horrabin v. City of Des Moines,
Here, however, appellees are not asking contribution from the appellant for the judgment or costs in the conspiracy case. Hence, there is entirely eliminated from the issues here involved a contribution from a joint wrongdoer so far as any liability growing out of the alleged tort itself is concerned. Those alleged conspirators did not commit a tort by hiring attorneys and counsellors for their defense in the conspiracy cases. Such act of hiring attorneys and counsellors by the alleged co-conspirators was neither wrongful nor against public policy. No illegality whatever appears in the transaction wherein the conspirators hired attorneys and counselors to defend them in the conspiracy suits. That act of hiring was entirely proper, legal, and valid. Therefore, the rule invoked by appellant has no application to *1074
the facts of this case. See Fakes v. Price, 89 P. 1123 (Okla.). Appellant and appellees are not joint tort-feasors so far as their acts were concerned in hiring attorneys and counselors to defend the conspiracy suit. The joint tort arose through the conspiracy to injure the aforesaid Henry W. Mowry, and culminated before the attorneys and counselors were hired. See Mowry v. Reinking (
Consequently, so far as the proposition now under consideration is concerned, appellees are entitled to contribution from appellant for his proportionate share of the attorney fees and legal expenses paid by them.
[2] II. A further argument is made by appellant in his endeavor to avoid his portion of the attorney fees and legal expenses. Such argument is based upon the theory that the obligation for attorney fees is not joint and several, but several only. The theory of the defense carried to its conclusion is that the alleged conspirators, each for himself, hired the attorneys and counselors and agreed to pay them, not all, but his individual portion of the fee only. If the contracts under which the obligations of the joint conspirators arose were several only, as distinguished from joint and several, contribution can not be had, under the facts of this case. Without the joint and several contracts there would be no basis for applying the principle of contribution, because in that event there would be no inequality of burden. Under the several obligations there would be no common duty upon a single obligor to contribute to those who performed their own several contracts only. McArthur v. Board,
Whether a contract is joint or several must be determined by the terms thereof, viewed in the light of the attending circumstances, and the practical, mutual construction, if any, placed thereon by the parties. Shively v. Globe Mfg. Co.,
Whatever defense was contemplated related, not to the group as individuals, but to all of them collectively. The obligation for these legal services was incurred by appellant and his co-conspirators jointly, as distinguished from severally. That conclusion is reached by considering the words in the stipulation with their context "viewed in the light of the attending circumstances." Under that agreement of employment the attorneys could have sued any or all of their clients for the entire compensation. Consequently there was a common obligation among the conspirators to these attorneys, and, in view of the fact that appellant did not discharge his portion of that common obligation, appellees, who paid the whole debt, are entitled to contribution from him for the excess over their own liabilities.
"Ordinarily, one of two joint obligors for the payment of money is bound to indemnify the other for any sum necessarily paid in excess of his proportional share in discharge of their obligation." Novak v. Dupont,
[3] Such doctrine of contribution in equity does not necessarily depend upon express contract. Rather than that, such doctrine is based upon the principle that equality of burden under certain obligations is equity. Lex v. Selway Steel Corporation,
"It (the doctrine of contribution) is not founded on contract, but arises from the equitable consideration that persons *1076 subject to a common duty or debt should contribute equally to the discharge of the duty or debt."
That pronouncement was approved in the Selway Steel Corporation case (
So, then, in view of the fact that the obligation in the case at bar is joint and several, a basis for contribution is laid. Novak v. Dupont, (
The district court compelled him to make the contribution, and its judgment, under the record, must be, and is, affirmed. — Affirmed.
WAGNER, C.J., and EVANS, MORLING, and GRIMM, JJ., concur.
