Magruder v. Admire

• Decision Date: 05 June 1877
• Citation: 4 Mo.App. 133
• Parties: R. B. MAGRUDER, ADMINISTRATOR, Defendant in Error, v. B. F. ADMIRE ET AL., Plaintiffs in Error.
• Court: Missouri Court of Appeals

4 Mo.App. 133

R. B. MAGRUDER, ADMINISTRATOR, Defendant in Error,

v.B. F. ADMIRE ET AL., Plaintiffs in Error.

St. Louis Court of Appeals, Missouri.

Jun. 5, 1877.

1. Plaintiff alleged in his petition that defendant and others, as principals, and plaintiff's intestate, as surety, executed a note in favor of B., who obtained judgment against all the obligors, and that by virtue of execution issued thereon plaintiff's intestate was compelled to pay the judgment; that the other principals are dead, and their estates insolvent; and prayed judgment for the sum thus paid. Defendant denied. Plaintiff replied, alleging that the undertaking of defendant was that of a co-surety, not of a principal., Held, that this was a departure, and the reply should have been stricken out on motion.

2. In an action for contribution by a surety against one of several co-sureties the measure of defendant's liability is controlled by the number of his co-sureties who remain solvent.

3. A surety's right of action against a co-surety does not accrue until he has paid in excess of his proportionate share of liability.

ERROR to Lincoln Circuit Court.

Reversed and remanded.

NORTON & MARTIN, for plaintiffs in error: The reply should have been stricken out.--Wag. Stat. 1017, sec. 15; 1 Chitty's Pl. 643-645; Suman v. Inman, 3 Mo. App. 596.P. P. STEWART, for defendant in error: Liability of a co-surety, and the measure of damages.--Wag. Stat. 1303, 1304, secs. 5-8; Labaume v. Sweeney, 17 Mo. 153; Dodd v. Winn, 27 Mo. 501. When the liability of a surety to a co-surety accrues.-- Singleton v. Townsend, 45 Mo. 379.

LEWIS, P. J., delivered the opinion of the court.

This is a suit brought by plaintiff, as administrator of the estate of Lassena Skinner, deceased, against Joshua W. Sitton, Andrew J. Williams, and Benjamin F. Admire. The petition alleges that, in November, 1858, the defendants, together with Samuel Matthews and James Admire, as principals, and the plaintiff's intestate, as surety, executed a promissory note in favor of Levi Bailey for $500, payable twelve months after date, with interest at ten per cent from date; that in March, 1861, Bailey obtained a judgment against all the obligors in the note, for $573.71; that sundry executions were issued successively on this judgment, so that, on August 10, 1870, plaintiff's intestate was compelled to pay, and did pay, the whole sum then due on the execution, which, with sundry sums previously paid by her, amounted to $1,127.94; that the said Samuel Matthews and James Admire are long since dead, and their estates were insolvent. Plaintiff asks judgment for the whole sum so paid by his intestate, with interest at ten per cent from the date of her payment.

The defendant Benjamin F. Admire filed a separate answer, in which he puts in issue many of the plaintiff's allegations, and “denies that he signed said note as one of the principal debtors, but says, to the contrary, that he was but a security to said note, and signed it as security, not receiving any benefit therefor.” The plaintiff filed a reply, in which he says “it is true that said defendant did sign the note as a security thereon, and was not a principal debtor in said note.” He then alleges that “this suit has long been dismissed as to Joshua W. Sitton and A. J. Williams, and that all the obligors in said note are insolvent, and a suit against them for the amount paid by Lassena Skinner would be unavailing.” He therefore “prays that he have judgment against Benjamin F. Admire for one-half the amount paid by deceased, viz., the sum of five hundred and sixty-three dollars and eighty-five cents,” etc. The defendant moved to strike out this reply, because it set up a new cause of action, and because suit had been dismissed as to Sitton and Williams. The court refused to pass upon this motion, and, neither sustaining nor overruling it, went into the trial upon the pleadings as they stood. The court, sitting as a jury, found for the plaintiff, and rendered judgment against the defendant for $767.65, with interest at ten per cent per annum.

The cause of action stated in the petition was upon the implied joint and several undertaking entered into by the defendant as a principal, with other principals, that if the plaintiff's intestate, as a surety, should pay off, voluntarily or otherwise, the obligation in which all were bound, he would reimburse her in the whole sum so paid. The cause of action set up in the reply was a sole undertaking by defendant as a surety, only, that if the plaintiff's intestate, as a co-surety, should be compelled to pay an amount in excess of her proportionate share of liability, he would reimburse her to the extent of his own proportionate liability under the common obligation. Here are brought into view two distinct forms of legal responsibility, different in origin, in parties, in contingent terms of enforcement, and in possible extent of recovery. Upon which did plaintiff intend to recover? Against which was defendant called upon to prepare his defence? If a plaintiff may so shift his ground between petition and reply, the statute which makes the reply the last pleading will cut off the defendant from any response to the claim for recovery latest on the record. The reply in this instance was a clear case of departure in pleading, and the Circuit Court committed error in refusing to strike it out. It was inconsistent with the petition. Wag. Stat. 1017, sec. 15; Suman v. Inman, 3 Mo. App. 596.

As the cause must be sent back, some other features will be...