71 Wash. 656 | Wash. | 1913
Suit for contribution. Verdict and judgment for the plaintiffs. The defendant has appealed.
The complaint alleges that, in the month of January, 1907, the respondents, the appellant, and one other person purchased a stallion of one George W. Souers, for which they agreed to pay the sum of $4,000, evidenced by their two joint and several promissory notes in favor of Souers, drawn
The appellant, for a second affirmative defense, alleged that Souers, the vendor and payee in the notes, in order to induce the makers of the notes to purchase the stallion, warranted that the stallion, with reasonable care, would get in foal sixty per cent of the mares mated with him for a period of two years; that if he did not do so, he would replace the stallion with another of the same breed and price, and that the makers need not pay the note last maturing until they were “satisfied that the stallion . . . was as guaranteed;” that Souers further agreed, as a part of the sale of the stallion, that he would keep him insured for a period of two years from the date of sale, loss, if any, payable to himself ; and that, in the event the stallion should die within the two years, he would “replace said stallion with another of the same breed and price;” that they took reasonable care of the horse, and that he did not get more than thirty per cent of the mares in foal that were mated with him; that the stallion died a natural death in the fall of 1908; that Souers was at once notified of his death and requested to replace him conformably to his guaranty, but that he refused so to do.
The appellant testified, that he was the manager of the company that purchased the horse; that the horse was guaranteed, and that he died within the two-year period; and then
The court erred in not admitting the deposition in evidence. It had a slight tendency to prove that the Bank of Commerce was not a holder of the note in due course. The appellant should have been permitted to offer testimony tending to prove the terms of the guaranty and their breach. The burden would have then devolved upon respondents to prove that the Bank of Commerce was a holder in due course. National Bank of Commerce v. Drewry, 70 Wash. 577, 127 Pac. 102; City Nat. Bank of Lafayette v. Mason, 58 Wash. 492, 108 Pac. 1071; Ireland v. Scharpenberg, 54 Wash. 558, 103 Pac. 801. The bank had no judgment against the appellant. Its judgment against the respondents does not conclude the appellant on the question as to whether the bank was a holder in due course.
“The right to contribution arises from the payment of more than one’s share of a common liability, and rests upon an implied promise not declared on or made an issue in the suit of the creditor against the common debtors.” Hoxie v. Farmers’ & Mechanics’ Nat. Bank, 20 Tex. Civ. App. 462, 49 S. W. 637.
The party from whom contribution is demanded must have been under a legal obligation to pay at the time the payment was made by those who demand the contribution. Stockmeyer v. Oertling, 35 La. Ann. 467; Andrews v. Murray, 33 Barb. 354; Turner’s Adm’r v. Thom, 89 Va. 745, 17 S. E. 323. The pleadings are silent as to how the bank got the note.
The judgment is reversed, with directions to grant a new trial.
Crow, C. J., Chadwick, Parker, and Mount, JJ., concur.