Hillegas v. Stephenson

• Decision Date: 31 October 1881
• Citation: 75 Mo. 118
• Parties: HILLEGAS, Appellant, v. STEPHENSON.
• Court: Missouri Supreme Court

75 Mo. 118

HILLEGAS, Appellant,

v.STEPHENSON.

Supreme Court of Missouri.

October Term, 1881.

Appeal from Henry Circuit Court.--HON. F. P. WRIGHT, Judge.

AFFIRMED.

M. A. Fyke for appellant.

If it was the understanding between plaintiff and defendant that they were both signing merely for the accommodation of Connor, then they are equally liable, and plaintiff having paid the whole amount, defendant is liable to him for one-half. Warner v. Price, 3 Wend. 397; Norton v. Coons, 2 Seld. 33; Barry v. Ransom, 12 N. Y. 462; Craythorne v. Swinburne, 14 Ves. 159; Griffith v. Reed, 21 Wend. 501. The evidence shows this was the understanding. Nothing more was necessary--no special agreement. The liability to contribution depends on principles of equity rather than on contract. Campbell v. Mesier, 4 John. Ch. 337.

R. C. McBeth and S. B. Orem for respondent, cited McDonald v. Magruder, 3 Pet. 474; Story on Prom. Notes, §§ 113, 135; Parsons Merc. Law, (2 Ed.) top p. 120; McCune v. Belt, 45 Mo. 174; McCarty v. Roots, 21 How. 432; McNeilly v. Patchin, 23 Mo. 40.

NORTON, J.

This was an action against defendant for contribution as co-security on a promissory note. The note was executed by plaintiff and one J. R. Connor, as makers, and made payable to defendant, Stephenson. Stephenson, as payee named in the note, indorsed the note to the First National Bank, Clinton, Missouri. The bank discounted the note for the benefit of Connor--neither plaintiff nor defendant receiving any of the benefits of the note. When the note became due it was protested for nonpayment, and within a few days thereafter plaintiff paid off said note to the bank, Connor, for whose sole benefit the note was made, being at that time insolvent. The cause was tried by the court without the intervention of a jury, and judgment rendered for defendant, from which plaintiff appeals, and assigns for error the action of the court in giving an instruction to the effect “that although plaintiff signed the note as an accommodation maker and merely as security for Connor, and defendant, the payee and indorser of the note, was only an accommodation indorser, by means of which Connor, as the sole principal, procured the money from the bank, plaintiff could not recover, unless it further appeared that there was a special agreement between them that they should stand as co-securities and be liable to contribution.”

This instruction presented the law governing the case and was properly given. An examination of the petition discloses the fact that the pleader or draftsman of it entertained the same view of the law, for after setting forth all the facts as to the execution of the note and...