Norton v. Coons

| N.Y. Sup. Ct. | May 15, 1846

By the Court, Bronson, Ch. J.

The doctrine of contribution among sureties is founded on a general principle of equity and justice. Sureties are in cequali jure, and must bear the burden equally. Contribution may be enforced whether they were bound jointly or severally; by the same, or by different instruments; and although the party who sues did not know at the time he became a surety, that the defendant was also a surety. The order of time in which they became bound is not a material inquiry. The only question is, whether they were in fact sureties for a principal debtor, and in relation to one and the same transaction. Courts of law have borrowed their jurisdiction on this subject from courts of equity; and along with it they have taken the maxim that equality is equity. The obligation. to contribute may, of course, be modified by contract between the sureties; and without any contract, a second surety may enter into the obligation for his principal in such a form that the first surety cannot call on him for contribution. But that is only where, by the terms of his undertaking, he treats all those who have preceded him as principal debtors. And in such a case, as he refuses to take upon himself the burden of a co-surety, he renounces the benefit incident to that relation. If he will not contribute when the other surety pays the debt, he shall pot have contribution when he pays it himself. These principles will be sufficiently illustrated and established by a reference to a few cases. (Deering v. The Earl of Winchelsea, 2 B. & P. 270; 1 Cox, 318, S. C.; Campbell v. Mesier, 4 John. Ch, 334; Davies v. Humphreys, 6 Mees. & Wel. 167; Mayhew v. Crickett, 2 Swanst. 193; Warner v. Price, 3 Wend. 397; Lapham v. Barnes, 2 Verm. 213; Harris v. Warner, 13 Wend. 400; Craythorne v. Swinburne, 14 Ves. 160; Story,on Cont. § 584; Pitman, Pr. & Su. 147.) The defendant relies with confidence on the case of Harris v. Warner, (13 Wend. 400,) where it was held that the defendant, who was the last of four sureties for Hovey, in a joint promissory note, was not bound to make contribution to the plaintiff, who was the first surety, and had paid the debt. But in that case, the defendant expressly qualified his undertaking, by adding to his signature the words, “ surety for the above names.” The decision went upon the ground, that having the right to qualify his contract as he pleased, he refused to sign as a co-surety with the others, and signed as surety for all who preceded him—sureties as well as principal. And as he refused to contract as a co-surety, and was exempt from the burden incident to that relation, it was agreed that he would have had no remedy against the other sureties, had the debt of the principal been collected from him. The case in Vesey also goes upon the ground, that the defendant had restricted his liability as a surety, by the form in which he entered into the contract. The plaintiff and principal debtor first executed a joint and several bond to the creditor; and the defendant then made his several bond to the creditor, with a condition to pay if neither of the obligors in the first bond paid the debt. Lord Eldon held that the defendant was not a co-surety with the plaintiff; but a surety for the plaintiff, as well as for the principal debtor. He laid some stress upon the parol evidence which was given of what passed between the creditor and the defendant at the time he gave the bond. That case is directly in conflict with Cooke v.-, (2 Freeman, 97,) and might, I think, very well have been decided the other way. But it is enough for the present, that it does not touch the case in hand. Here the sureties are all bound by one contract; and there is nothing in the form of the defendant’s undertaking to show that he did not intend to become a co-surety with the plaintiffs, with all the rights and liabilities incident to that relation.

It is of no consequence in a legal point of view, that the plaintiffs did not know when they signed the note that the defendant was also to be a surety. The defendant made himself a cosurety by becoming a party to the same contract, without any qualification of his undertaking. This was admitted by Lord Eldon in Craythorne v. Swinburne, (14 Ves. 160;) and is abundantly established by Warner v. Price, (3 Wend. 397,) and Lapham v. Barnes, (2 Vermont, 213.) The last case goes much beyond the one at bar; for there the second surety did not sign the note until after it had become a valid security in the hands of the creditor; while here the note never had any vitality until after all the parties had signed it.

. Nor do I see that what passed between the principal debtors and the defendant can-in any way affect the question. Notwithstanding all that was said, the defendant did become a co-surety with the plaintiffs; and by that act he acquired all the rights, •and became subject to all the liabilities incident to that relation. The mistake which Schuyler <fc Akin made when they undertook to expound the law, by telling the defendant what would be the force or effect of his contract, could not change or modify the contract itself, nor the consequences which must flow from it.

Much stress is laid upon the fact that this is an action of assumpsit, and the circumstances are such as to repel the idea that a promise to contribute was ever made. But when it was settled that courts of law would enforce contribution between sureties, what was before only an equitable, became a legal obligation ; and where there is a legal right to demand a sum of money, and there is no other remedy,- the law will, for all the purposes of a remedy, imply a promise of payment. (Birkley v. Presgrave, 1 East, 220; Bachelder v. Fisk, 17 Mass. 464; Cowell v. Edwards, 2 B. & P. 268; Chit. on Cont. 24, ed. of ’42.) We think the plaintiffs are entitled to recover.

New trial granted.