Thorsen v. Poe, 123 Ark. 77

Thorsen v. Poe

123 Ark. 77 | Ark. | 1916

Kirby, J.

(after stating the facts.) Appellants contend that no equities arose from the judgment of the liquor company as between A. B. Poe and W. B. Calhoun, which can be enforced against the assignees of Calhoun, who were not parties thereto, this court having reversed the judgment of the lower court after the assignment thereof to Calhoun, and dismissed the action as to him. It is not denied however that Poe and Calhoun were sureties on the bond required by law of the insurance company, and as such liable of course to the payment of its obligations. The chancellor found in this action for contribution that surety Poe paid obligations of said principal insurance company, in discharge of the liability as surety oh said bond in sufficient amounts to entitle him to recover as contribution from his co-surety Calhoun the sum of $1,500, from which judgment no appeal was taken by said Cal- . houn.

(1) It is a familiar principle that where several parties are equally liable for the same debt, or bound to the discharge of an obligation, and one is compelled to pay or satisfy the whole of it, he may have contribution against the others to obtain payment for their respective shares. 6 R. C. L. 1036-7; 1 Brandt Suretyship, Sec. 279. Our statute also recognizes this right. Kirby’s Digest, § 7926; Wilks v. Vaughan, 73 Ark. 174; Salinger v. Black, 68 Ark. 449.

(2) The assignee takes the judgment subject to all the equities and defenses existing between the parties thereto. 2 Freeman, Judgments, § 427; 23 Cyc. 1424; Am. Ins. Co. v. McGehee Liquor Co., 113 Ark. 488.

(3) The first assignee of the judgment, W. B. Calhoun, was a co-surety on the insurance company’s bond with A. B. Poe, appellee, and equally liable with him to the discharge of all obligations of the insurance company, for which the sureties were bound under the terms of said bond. He was liable to contribution to his said co-surety Poe on the whole amount paid out by Poe as surety beyond the amount of his share of the indebtedness or obligations of said insurance company, which has been determined herein to be $1,500 with costs, an amount in excess of said assigned judgment attempted to be enforced against said Poe. There is no question but that Poe in a suit or any other proceeding for the collection by Calhoun of said judgment claimed to have been assigned to him could have claimed as a defense the amount due from said surety Calhoun to Poe as contribution for the amount of the debts and obligations of the insurance company discharged by Poe añore than his share hereof, himself and Poe being the solvent sureties.

Having the right to contribution of said amount from W. B. Calhoun, who was in fact a party when he paid the consideration and became the first assignee of the judgment, he can enforce the collection of the amount thereof as against the judgment in the hands of the present assignee, the assignment not cutting off any equities nor defenses that existed as between said Calhoun and appellee Poe.

The decree is affirmed.