34 Ala. 505 | Ala. | 1859
When two or more persons jointly become sureties for another, on a note for the payment of money, each surety becomes liable to the other to pay his share of the liability, in the event the principal fails to do so. Pait v. Pait, 19 Ala. 713; White v. Banks, 21 Ala, 705; Taylor v. Morrison, 26 Ala. 728; Martin v. Baldwin, 7 Ala. 923.
In such ease, if the principal fails to pay, and one of several sureties is forced by suit to pay the debt, there accrues to the surety so paying, at the time of the payment, a right of action against his co-surety for contribution. The surety sued need not wait until the money is forced out of him by execution. He may pay as soon as judgment is recovered against him, or his liability otherwise fixed and matured, and does not thereby forfeit his right to contribution -from his co-sureties.. Money thus paid is, to the extent of the liability of the co-surety to contribute, considered in law as paid at the special instance and request of the co-surety; and at that precise time, the cause of action to recover, on such implied promise accrues, without reference to the time when the original contract matured. — Knox v. Abercrombie, 11 Ala. 997; Broughton v. Robinson, 11 Ala. 922 ; Roberts v. Adams, 6 Por. 361; Young v. Clark, 2 Ala. 264; May v. Long, 6 Ala. 107; Martin v. Baldwin, 7 Ala. 923; Jones v. Lightfoot, 10 Ala. 18; Hooks v. Br. B’k Mobile, 8 Ala. 580; Couch v. Terry, 12 Ala. 225; Pearson v. Gayle, 11 Ala. 278; 1 Parsons on Contracts, 32 to 37.
Another view of this question: Suppose Mr. Stallworth had paid to Halsey, Utter k Co. their entire demand, and had subsequently received from Watts, his principal, indemnity for one-half the amount; or suppose an execution, issued upon the judgment, had been levied, as to half the amount, of the goods of Watts; and he, Watts, having no other effects, the remaining half had been paid by Stallworth. If, in the case first supposed, Stallworth had sued Preslar for contribution, the latter could claim an equal benefit in the indemnity furnished by Watts, their common principal. — Bizzell v. White, 13 Ala. 422; Pinkston v. Talliaferro, 9 Ala. 547. Being, under this' rule, entitled to share in all the advantages, secured by
These rules show clearly that tbe circuit court erred in sustaining defendant’s demurrer to the first count of tbe complaint.
TJnder tbe rules above declared, the plaintiff’s right to recover in this action, depends on the fact that be and the defendant were co-sureties of Mr. Watts, their coni-mon principal; and that after default by the principal, the plaintiff has paid more than his pro-rata share of the liability. This, we have seen, does ¿not render it necessary that he shall have paid more than one-half of the original liability, provided the debt to the creditors has been extinguished as against all the obligors. Proof, then, of these facts, makes a prima-facie case for recovery. Any testimony which legitimately tends to establish either one of these facts, is legal and competent, and should not be rejected.
In point of fact, the judgment in favor of Halsey, Utter & Co. v. Watts and Stallworth, though rendered by the county court of Monroe, was, at the time of its liquidation by Stallworth, pending in the circuit court of that county; the county courts having been before that time abolished, and their records transferred to the circuit courts. — See Glass v. Glass, 24 Ala. 468.
The oral testimony of the witnesses, tending as it did to show that the payment made by Stallworth was on the
The judgment of the circuit court is reversed, the non-suit set aside, and the cause remanded.