Rudolf v. Malone, 104 Wis. 470

Rudolf v. Malone

104 Wis. 470 | Wis. | 1899

WiNslow, J.

This court has recently decided, after full consideration, that county courts, prior to the passage of ch. 335, Laws of 1897 (now found in part in sec. 42815, Stats. 1898), had no power, by the taking of a new bond or otherwise, to discharge sureties from liability for either past or prospective misconduct of an executor, administrator, or trustee, but that such new bond, if taken, was merely cumulative. Richter v. Leiby's Estate, 101 Wis. 434. This being the law, it is evident that the giving of the second bond in this case in August, 1893, did not discharge the liability of any surety on the first bond. But it is said that, while the sureties who did not sign the first bond were not discharged from liability to the distributees or creditors of the estate,, still, when the question of the right to contribution arises, the situation is different, and that the sureties on the second bond have by their own act become primarily liable, and cannot demand contribution from sureties who signed the first bond only, because the right of contribution is founded simply on equitable considerations, and does not arise from ex*473press contract. This exact question was raised in Thompson v. Dekum, 32 Oreg. 506, and decided adversely to tbe defendants’ contention here, upon reason and authority. It was there said, in effect, that if sureties are bound for a common principal, to insure the performance of the same duty or obligation, the fact that they may be bound by different instruments given at different times is immaterial; the right to contribution exists. This is the situation shown by the complaint in the present case. Nor is the rule affected by the fact that the second bond recites that one of the defendants has asked to be released from the first bond, and another has removed from Dodge county. These facts alone neither show any agreement between the parties that the second set of sureties were to be primarily liable, non do they amount to an estoppel. Whether the allegations of the answers show a defense by way of an implied agreement or estoppel is a question which is not before us, and which is not decided.

By the Goxtrt.— Judgment reversed, and action remanded for a new trial.