Opinion
January Term, 1868
A. Berry, for the appellants.
F. Kernan, for the respondent.
The grounds upon which the appellants seek to reverse the judgment in this action, are:
1. That it is "an action at law," and cannot be maintained, because,
First, the plaintiff has not yet paid the sum assumed by him, and there are still outstanding claims against the sheriff which Gary's sureties may hereafter be required to pay.
Second, the plaintiff and the defendants were bound by different bonds, and in distinct and several penalties.
Third, the plaintiff cannot recover in an action at law against the defendants jointly.
2. If the action be regarded as an equitable action it is prematurely brought, other claims being outstanding to which the sureties may be liable.
3. The plaintiff should bear one-fourth of the whole burden, to the sum of $8,000, i.e. until he had paid one-fourth up to the amount of his bond, $2,000.
4. If the action be equitable, still the plaintiff was not entitled to a judgment against the defendants jointly. This enables him to collect the whole from one defendant, and drive him to another action for contribution.
The counsel for the appellant stated also that one of the defendants has become insolvent, but no such fact appears in the allegations of the parties, and no such fact appears in the finding of the referee.
In the face of an express statute providing that where the defendants appear and answer, the court may grant the plaintiff any relief consistent with the case, made by the complaint, and embraced within the issue (Code, § 275); it is not error to allow the plaintiff any judgment to which, upon the allegations and proof, he is entitled either at law or in equity. It may be conceded that by abrogating the distinction in the form of the action, the legislature has not, and could not, under the Constitution, deprive a party of the right of trial by jury "in cases in which it has been heretofore used." But, where the facts alleged and proved entitle the plaintiff to equitable relief, and no question has arisen touching the mode of trial, a referee, to whom the trial of an action, whether legal or equitable, may be lawfully referred, is bound, in obedience to the above quoted section (§ 275), to grant the plaintiff any relief, whether legal or equitable, to which, upon the allegations and proofs, he is entitled.
The questions, therefore, are whether the plaintiff was, at the time this action was brought, entitled to any contribution from the defendants, and if so, in what proportion; and should the judgment be reversed because it is in form against the three defendants jointly for a gross sum.
There are no special circumstances found by the referee indicating that the bond given by the defendants was given at the solicitation or for the accommodation of the plaintiff, or upon any consideration arising between the plaintiff and the defendants, creating an equity in their favor to be protected from contribution, nor any facts indicating that the bond of the defendants was intended as a subsidiary security, and the other, as between those parties, the primary security to operate pro tanto for the defendants' protection. Some claim of this kind was set up in the answer, but no facts appear to have been proved warranting such claim.
The general doctrine, that there existed from the moment of the delivery of these bonds an equitable right to contribution in case a liability should arise against all of the sureties, if one only should be compelled to pay, is, therefore, directly applicable unless the fact that the parties were bound by separate bonds in different penalties, per se, changes their relations to each other in this respect.
That one of two or more sureties for a common principal, who has been compelled to pay the whole or more than his just proportion of the sum for which all were bound, may compel the others to contribute their just shares of what he has so paid, is not and cannot at this day be denied.
That the rights and obligations of the sureties, inter se, are the same whether they are bound under one or several like obligations for the same principal and for the same debt or duty, is stated by Mr. Justice STORY (Eq. Jur. § 495), and where there are several distinct bonds, with different penalties, contribution between the sureties is in proportion to the penalties of their respective bonds (§ 497), is also stated. He refers to the opinion of Lord Chief Baron EYRE in the English Exchequer ( Deering v. The Earl of Winchelsea, 2 Bos. Pul. 273), in which he says, "they are bound as effectually, quoad contribution, as if bound in one instrument, with this difference only, that the sums in each instrument ascertain the proportions, whereas, if they were all joined in the same engagement they must all contribute equally."
Lord ELDON, in Mayhew v. Crichett et al (2 Swanst. 198), says: "Although the doctrine at one time prevailed that where there were separate securities there should be no contribution, that has been exploded since the case of Deering v. Lord Winchelsea;" and again (p. 201), referring to that case, "having myself been counsel against that doctrine, I was much dissatisfied with it; but on further and maturer consideration I ought to make so much amends as to say that I am convinced it was right."
This case of Deering v. Lord Winchelsea is a leading case on the subject; it rests the right of contribution upon the principles of natural justice and equity, and not upon any ground of implied or presumed contract between the sureties. And hence, the case has since been followed and applied to cases in which some of the sureties become such without the knowledge that the others were bound, and to cases in which the suretyship of some was entered into subsequently to that of others. Always, however, provided the obligations were for the same debt or duty, and were not other and distinct transactions, and where it did not appear that one was intended to be secondary or collateral to the other. (See Norton v. Coons, 1 Denio, 130; Warner v. Price, 3 Wend. 397; Barry v. Ransom, 2 Kern. 462, 466.)
I have not been able to find a case in which the rule, as stated by Chief Justice EYRE, has been, since that time, denied. It is true that, in the case itself, as reported, the sureties appear to have been bound in equal sums, but as a statement of a rule of equity, in a case very often referred to with approbation, it is entitled to be regarded as high authority.
Mr. Justice REDFIELD, in the eighth edition of Story's Equity Jurisprudence, has added a section, number 497 a, not very intelligible in the connection in which it is found, and the counsel for the appellant in the present case has cited it as an intimation of dissent from the doctrine that where the sureties are bound in different sums, their contribution should be in the like relative proportion. The interpolated section does not bear such a construction. It questions "whether the more recent decisions in courts of equity justify any such discrimination between sureties for the same debt, by different bonds, with different sums as penalties, unless where the purpose of the different sums in which the sureties are bound, is to show that the obligor incurs the hazard of only a portion of the debt, or a portion of what the other assumes." That is to say, where the instruments show that each surety became bound for the whole debt, the circumstance that the penalties of the bond were unequal might not affect the rate of contribution. He cites no new authority, but his note to the section shows that his meaning is as last suggested — citing Deering v. Lord Winchelsea, he says: "This is the case which first decided that contribution among sureties is not a matter of contract, but of general equity, on the ground of equality of burden and benefit. We infer, therefore, that the difference between the penalties will make no difference, provided each exceed the debt, or the purpose of each is to bind all the sureties to the extent of the whole debt."
The converse of this supposed qualification is, that where the penalties respectively are less than the whole debt, or the purpose is not to bind all the sureties to the extent of the whole debt, actual or contingent, the contribution will be proportioned to the burden assumed by each, i.e., pro rata. That is the present case. Each assumed a part, and only a part, of the responsibility, and they should share whatever is lost thereby in the proportion in which they took the hazard of the aggregate whole.
The notes to the case of Deering v. Winchelsea, in White's Leading Cases in Equity (vol. 1, pp. 60-71, with American notes in the Law Library edition, vol. 65, pp. 78-104), contain a full collection of authorities bearing upon this subject, many of which are from this State.
I regard the rule as well warranted by authority, and just and right in itself, which holds the parties before us to contribution in the proportion in which they became bound to the sheriff.
It remains to inquire whether the action must be held to be prematurely brought, because the referee has found that "some claims are still outstanding" against the sheriff, "growing out of the acts and alleged defaults of Gary as under-sheriff."
1. No such defense is set up in the answer of the defendants, and, therefore, no such defense was available to them on the trial.
2. As to such claims as the referee finds had "been disposed of without damage to the sheriff," the sureties were no longer in any peril; as to such as "are supposed to have been paid by the defendants," the silence of the answer on the subject is conclusive that they constitute no ground of defense whatever. And as to "some claims" not shown to have any validity, resting alone in "alleged" defaults of Gary, of which there was no proof satisfactory to the referee, they are not proved or found to be obligations for which the principal, Gary, is liable, and, therefore, are not shown to be within the obligation of the bonds
It is, therefore, not necessary to discuss the question, whether, if it had been alleged as a defense, and had been proved on the trial, that the principal had been guilty of acts or defaults for which he was liable to the sheriff, that proof would have availed to defeat the plaintiff's action as premature.
But I am not satisfied that the plaintiff was entitled to a judgment against the defendants jointly, upon which he may collect the whole amount from one only. The plaintiff's action and the judgment in his favor is sustained as an equitable action for contribution. The proper judgment or decree in such case should determine the sums which the several defendants are bound to contribute.
Had it appeared that the defendants made any such claim, or had, on the trial, insisted upon any apportionment of the amount due by them, or called the attention of the referee to the subject, the general exception taken to his conclusion, that the plaintiff was entitled to judgment against the defendants for the sum found by him, should prevail. But, having in no wise raised the question below, I think the judgment should be affirmed.
HUNT, Ch. J., and CLERKE, MILLER and BACON, JJ., concurred.
GROVER, J., was of the opinion that the judgment should be reversed, because it was rendered against the three defendants jointly.
Judgment affirmed.