Gregg v. Carroll
| Decision Date | 05 May 1919 |
| Citation | 211 S.W. 914,201 Mo.App. 473 |
| Parties | L. L. GREGG, Respondent, v. CHARLES P. CARROLL, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. O. A. Lucas, Judge.
Judgment reversed.
Conger R. Smith for respondent.
George & Thomas H. Kingsley for appellant.
On June 1, 1905, one J. P. Smith executed his note to Charles P Carroll and L. L. Gregg, or order, for $ 90, due in six months. Afterwards Carroll and Gregg jointly sold and endorsed the note to one Gosh. Three years after it became due (June 25, 1908) Gregg paid the whole of it and more than seven years thereafter December 15, 1915, brought this action against Carroll for one-half what he paid. He recovered judgment in the trial court.
The question is one of limitation and involves the ten and five years statute (Secs. 1888 and 1889, R. S. 1909). Plaintiff contends that it is governed by the ten year period, while defendant insists that it falls under the five year period. It will be observed that the ten year period applicable to the note itself, which fell due December 1, 1905, would expire December 1, 1915 and that when plaintiff brought this suit for contribution more than seven years had run from the date he paid the note. So if the ten year statute applies the suit was not barred, but if the five year statute applies it was.
The ten year statute (Sec. 1888) reads; that actions shall be brought "upon any writing, whether sealed or unsealed for the payment of any money or property;" etc. The five year statute (Sec. 1889) reads; that actions shall be brought "upon contracts, obligations or liabilities, express or implied, except those mentioned in section 1888," etc.
The question is, was the obligation existing between plaintiff and defendant as between themselves, as joint endorsers, a written contract as contemplated by the ten year statute? or was it merely an implied obligation contemplated by the five year statute? If the former the judgment should be affirmed, but if the latter it should be reversed.
When plaintiff and defendant jointly endorsed the note, they became jointly obliged in writing to third parties to pay it if duly notified that the payor had defaulted (in this case notice and protest were waived). As joint obligors if one paid the whole debt, the law, from principles of equity or natural justice, raised up an implied contract that the other would reimburse him one-half. They became co-sureties as to each other. [Weeks v. Parsons, 176 Mass. 570; McNeilly v. Patchin, 23 Mo. 40, 44; 2 Daniel Neg. Inst., sec. 1340.] There was no written contract that either would reimburse the other. The obligation is not expressed in the note, but it arises from the relationship to one another, and hence, from the very terms of the statute itself, the ten year period would not apply and hence when the action was brought, it was barred by the five year statute.
Plaintiff concedes that he has no case from this State upon the question as between joint endorsers or joint obligors. He has however cited a number from which he undertakes to apply the principle announced in them in this case. We think they are not applicable. The only case cited by him, applicable in the facts, is Caldwell v. Hurley, 41 Wash. 296. But the statute there is unlike ours and that of most of the States. It reads that actions shall be brought "upon a contract in writing, or liability expressed or implied arising out of a written agreement." The court calls attention to the statute being unlike that of most of the States and said, that: "The Legislature evidently thereby intended that a certain class of actions should be included within the terms of said section which had not in other States been associated or connected with actions on written instruments or actions founded upon written agreements."
So far as the principle involved here is concerned plaintiff and defendant may be considered as joint makers of the note with one paying the whole amount. In...
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