224 N.W. 362 | Mich. | 1929
The Detroit Coal Exchange was a voluntary unincorporated association composed of approximately 50 retail coal dealers. From 1914 to 1917, the law firm of Beaumont, Smith Harris rendered certain professional services to the association and incurred certain expenses for which suit was brought by this firm of attorneys against the association and the various members composing it. Both the plaintiffs and the defendant herein and a large number of other members of the association were served with process, among them C.F. Sweeney, who was doing business as the C. F. Sweeney Coal Company. Following the entry of default for nonappearance, judgment for $4,332.50 *216
was taken against the Lorimers and the Julius Knack Coal Company on December 19, 1917, and against C.F. Sweeney for the same amount on January 30, 1918. As to the other defendants on whom service of process was obtained, the suit was discontinued by stipulation. After an appeal to this court (Lorimer v. WayneCircuit Judge,
1. When several persons assume a joint and several liability, and subsequently judgment is entered on such liability against less than all of them, which judgment is satisfied in full by one of the judgment debtors, is his right to contribution based upon the original assumption of liability or upon the judgment?
2. If the right to contribution is based upon the judgment (and not on the antecedent joint and several contractual liability) should it be between the plaintiffs and the defendant only and based upon the judgment taken against them on December 19, 1917; or should contribution be enforced on the basis of there being three judgment creditors, thereby including C.F. Sweeney, against whom judgment was taken in the same suit for the same amount and arising *217 out of the same obligation but on a subsequent date, to wit, January 30, 1918?
It has often been stated by the courts that contribution is founded on principles of equity and natural justice. The doctrine rests on the principle that when parties stand inaequali jure, the law requires equality, which is equity, and one of the parties will not be obliged to bear more than his just share of a common burden or obligation to the advantage of his co-obligors. 13 C. J. p. 821. It is applied in those cases where one or more of several parties equally obligated have done more than their share in performing a common obligation. "And one who has paid more than his share of the joint obligation may recover contribution from his co-contractors."Comstock v. Potter,
"The fact that the one from whom contribution is sought was voluntarily dismissed from the action by the obligee is no defense." 6 R. C. L. p. 1044; Dole v. Warren,
"No discharge by the creditor of one obligor which does not discharge all can impair the right to contribution." 6 R. C. L. p. 1047.
"The fact that judgment was taken against only one of several persons jointly liable does not affect the right of contribution." 13 C. J. p. 827; Hoxie v. Farmers', etc., Bank, 20 Tex. Civ. App. 3462 (
"The principle of contribution is equality in bearing a common burden; and this equality may depend upon the circumstances and relations of the parties anterior to the judgment." 6 R. C. L. p. 1047.
At the time plaintiffs brought this suit for contribution, the right existed against each of the original obligors. Plaintiffs had the right to recover from each of them his proportionate share and no more. 13 C. J. p. 825. *219
If a co-obligor who has paid off a joint debt could proceed against the remaining co-obligors and obtain a single judgment against all of them jointly, one of them might be compelled to pay the entire amount, and then he would have to proceed anew against the remaining co-obligors, and thus a multiplicity of suits would be encouraged, rather than prevented."Hall v. Harris,
It is well settled that, in determining the proportion of contribution, those of the obligors who are insolvent are excluded. As to the remainder of the obligors who are inaequali jure, each is liable for the payment of his just proportion of the obligation. The amount for which the defendant was found liable in this case was fixed by a wrong method and was excessive. The judgment is reversed, and a new trial ordered.
FEAD, FELLOWS, WIEST, CLARK, McDONALD, POTTER, and SHARPE, JJ., concurred.