Danforth v. Robinson

• Decision Date: 27 July 1888
• Citation: 15 A. 27,80 Me. 466
• Parties: DANFORTH v. ROBINSON et al.
• Court: Maine Supreme Court

15 A. 27

80 Me. 466

DANFORTH

v. ROBINSON et al.¹

Supreme Judicial Court of Maine.

July 27, 1888.

Exceptions from supreme judicial court, Somerset county.

Debt on judgment for contribution between co-sureties on a promissory note. Plea, discharge in insolvency. The opinion states the material facts. The presiding judge ruled in favor of the defendant, and the plaintiff alleged exceptions.

J. J. Parlin, for plaintiff. Walton & Walton, for defendant.

VIRGIN, J. These parties were co-sureties on a promissory note given in September, 1875. In 1879 the plaintiff paid the note to the holder, and in March, 1885, recovered judgment against the defendant for contribution. Subsequently the defendant duly obtained his discharge in insolvency from all his debts, etc., which existed in May, 1885. The insolvent law went into full effect on September 1, 1878, when the federal bankrupt law was repealed. The present action is debt on the judgment of March, 1885, to which the defendant has pleaded his discharge in bar. The principal question is whether one surety on a note, given before the insolvent law went into effect, who paid it and recovered judgment for contribution against his co-surety after the insolvent law took effect, can maintain an action on the judgment non obstante the judgment debtor's discharge. It seems to be settled law that as between co-sureties the right of action for contribution in behalf of one of them who has paid the whole debt for which they were liable, arises when he pays, and not before; and then, and not before, can he prove his claim for contribution against the estate of his insolvent co-surety. Dole v. Warren, 32 Me. 94. But while the right of action did not arise until he paid, it does not necessarily follow that the original liability, which then had ripened into a right of action, had not existed before. It is contended that, as the defendant's discharge, by force of the statute, "released him from all debts, claims, liabilities, and demands which were or might have been proved against his estate in insolvency," and which existed in May, 1885, (Rev. St. c. 70, § 49,) and as the plaintiff not only paid the whole note, but also recovered judgment against the defendant for his contributory share, prior to May, 1885, the plaintiff's claim became an existing one, which "might have been proved against the estate in insolvency" of the defendant, and hence was one of the claims covered by the discharge. But this language of the statute must not be taken literally, for, thus construed, it would include claims and debts which antedated the insolvent law, and thus render that provision unconstitutional as impairing "the obligation of contracts," (U. S. Const. art; 1, § 10; Const. Me. art. 1, § 11; Palmer v. Hixon, 74 Me. 447, 449,) as well as debts owed by citizens of this state to those of another state, regardless of date, (Hills v. Carlton, 74 Me. 156.) Hence the "debts, claims, liabilities, and demands," from which the defendant was released by his discharge, must be limited to such as originated after the law, by its terms, took effect, together with such as were between citizens of this state, unless the creditors or claimants in such excepted cases elected to prove their claims. Fogler v. Clark, 80 Me. —, ante, 9; Palmer v. Hixon, supra; Hills v. Carlton, supra. Did the liability of the defendant originate prior to the insolvent law? "We think this question has been decided in the affirmative in this state, and it is, therefore res judicata. The note which these parties signed as sureties was given three years before the insolvent law was enacted, and hence the law could not have formed a part of the note "as the measure of the obligation to perform it," (McCracken v. Hayward, 2 How. 612;) or of the right of contribution between the co-sureties, provided that right was founded on an implied contract or promise raised by the law from the mutual relation of the parties at the time, and in consequence of their execution of the note, unless it became merged in the judgment of March, 1885. This court, at an early day, decided that, "at the time of executing an instrument by several persons as sureties, each one impliedly promises all the others that he will faithfully perform his part of the contract and pay his proportion of the loss arising from the total or partial insolvency of the principal. * * * Such a promise resembles that by which a man binds himself to pay a certain sum of money at a future day." And following out this principle, the court held that the relation of debtor and creditor among the sureties on a bond, so as to entitle one of them to impeach a voluntary conveyance made by another, commences at the time of executing the bond, and not at the time when he...