18 Mo. App. 340 | Mo. Ct. App. | 1885
delivered the opinion of the court.
Alexander McCully contracted with the Missouri Pacific railroad company for the furnishing of materials and the construction of stone-work, on land owned by the company, for a large building, a comparatively small part of which was to be used for general offices, and the remainder as a freight depot, into which the cars of the company were to run. He executed a bond to the company, with the present plaintiffs and defendants as his sureties, in the sum of $5,000, with the condition that “the said Alexander McCully shall well and truly do and perform all said work, shall furnish the necessary material, labor, implements, and pay for the same, and shall otherwise well aud truly comply with each and all the conditions of said contract, etc.” The plaintiffs, a partnership firm, allege that, upon McCully’s breach of the condition, they were compelled to pay, and did pay to the obligee because thereof, the sum of $1,683.23, and pray fora judgment compelling the defendants, Rohan and Goetz, their co-sureties, to contri
The plaintiffs were sub-contractors with McCully for furnishing stone, and defendant, Rohan, was a subcontractor for furnishing sand. Each of them sued McCully for a balance due, and the railroad company, in the same proceeding, for foreclosure of a mechanic’s lien on the lot and building. Rohan obtained a personal judgment against McCully. for $565, but the lien was denied him as the record states, on two grounds: 1. That it was not lawful to enforce a mechanic’s lien against the property of a railway company; and, 2. That Rohan, being a surety on the contractor’s bond, could not pursue a lien which the bond was intended to prevent. The present plaintiffs got judgment against McCully for $4,079.44. and their , lien claim was settled by agreements with the railway company to the following-effect : The company withdrew its opposition to the lien, and waived its right of appeal from the judgment to be rendered thereon. The plaintiffs agreed not to enforce the judgment for a greater amount than the money actually in the company’s hands as a balance due to McCully, “until such time . as the said Missouri Pacific railway company will have enforced its claim against the sureties of said McCully, or either of them, on the bond herein above mentioned, for the excess that it may be adjudged to pay to said lienors over and above the amount in its hands.” The company agreed to “institute such suit against the said sureties, or some of them, at the earliest practicable time, and to' push the same to final judgment as speedily as practicable : the said Skrainka and Yieths agreeing to aid it by all legal means to bring about such final adjudication without delay.” After entry of the judgment, formal instruments of release and receipt were exchanged by the parties. The release executed by the plaintiffs recited that the company had paid to them in cash the sum of $2,552.01, which was the whole amount due from the company to McCully, and had paid to them the remainder of their judgment, amounting to $4,234.24, by
The right to contribution from co-sureties is strictly confined to cases of compulsory payment by the complaining surety. Compulsion in this sense, does not always mean the actual levy of an execution, or even the rendering of a judgment. If there is a clear legal duty to pay, which may be enforced by judgment and execution, the party is not required to await an additional imposition of costs in the application of those remedies.If a judgment has been recovered against the paying surety, which the co-surety had an opportunity of defending against, it will be binding on such co-surety, and contribution may be enforced, as a general rule. But if the co-surety had no such' opportunity for defending, he may attack the judgment with like effect as he might a voluntary payment without it. If he can show that the judgment might have been successfully-resisted by proper steps taken in the defence, a payment under it will be treated as a voluntary payment, for which no contribution can be claimed. So, if the payment be made without a judgment, the co-surety may avoid contribution by showing that no judgment could have been obtained against the paying surety, or against himself in a proceeding for that purpose, if properly resisted within the law. On .the other hand, the paying surety may enforce contribution, if it be made to appear that he had no means of preventing a judgment against
The key to the situation in the present case will be found in the single guestion, whether the plaintiffs, as sub-contractors, could have lawfully enforced their mechanic’s lien against the property of the railway company, for what was due them from McCully, the principal contractor. If this be answered in the affirmative, the case will stand thus: The plaintiffs might have their lien judgment against the company for the unpaid balance of $1,683 due from McCully, after deducting the cash paid them. The company would then have an action against the plaintiffs as sureties on McCully’s bond, to recover the same amount back again, for breach of the condition that he would pay for all the materials furnished. And since the plaintiffs could not successfully resist this demand of the company, they might pay it, as they did do without waiting for a judgment, and might compel contribution from their co-sureties. But if the same guestion be answered in the negative all the results become reversed. The lien judgment, not having been resisted, as might have been done with success, but having been voluntarily submitted to without any participation or opportunity for a defence by the present plaintiffs, is inoperative as to them. The company could not maintain an action against them as sureties, for a breach of the bond, because its submission to the lien and its .payment thereon were both voluntary. The essential condition of a common liability on the bond in the present plaintiffs and defendants, being absent, the plaintiffs’ payment gave them no right to demand contribution.
We think it is the law in Missouri, that an ordinary mechanic’s lien can not be enforced against the property of a railway company, held and used for the purposes of its incorporation; and, therefore, that the plaintiffs
We are referred by learned counsel for the plaintiffs to a number of cases in other states which hold to a contrary doctrine. But those authorities do not furnish ns with Missouri law. Hill v. La Crosse R. R. (11 Wis. 214), strongly illustrates this fact. Our case of Dunn v. N. M. R. R., is there explained as being in accord with the constitutional policy of Missouri, which “forever encourages internal improvements. ’ ’ ‘ ‘ But, ” it is added, “our constitution expressly forbids the state to be any party to carrying on such improvements, but leaves them to private enterprise, with such aid as may be obtained from the localities through which they pass.”
the judgment of the circuit court is affirmed.