Norris v. Churchill
| Decision Date | 28 June 1898 |
| Docket Number | 2,587 |
| Citation | 51 N.E. 104,20 Ind.App. 668 |
| Parties | NORRIS v. CHURCHILL |
| Court | Indiana Appellate Court |
Rehearing denied October 11, 1898.
From the Rush Circuit Court.
Affirmed.
W. A Cullen, W. H. Martin, J. D. Megee and D. C. Justice, for appellant.
B. L Smith, Claude Cambern and D. L. Smith, for appellee.
BLACK, J. Henley, C. J., took no part in the consideration or decision of this cause.
The appellee sued the appellant for contribution. They, with three others, jointly purchased a horse, each of the five purchasers paying one-sixth part of the price. The remaining one-sixth part of the purchase-money they borrowed from a bank upon their joint promissory note payable at said bank upon demand. The appellant, without the knowledge or consent of the appellee, paid to the bank the one-fifth part of the amount of the note in cash. The other makers thereof, on the same day, gave their joint promissory note, negotiable by the law merchant, to the bank for the balance, being four-fifths of the amount of the debt, the appellant not joining with the other makers in the execution of the latter note. Prior to the appellant's said payment of a part of the debt, two of the makers of the original note, Joseph T. Johnson and Owen Kincaid, had become insolvent, and they so continued thereafter. When the second note became due the makers thereof renewed it, and upon this third note the bank sued and recovered judgment thereon against the makers thereof. The appellee paid the judgment by giving his note negotiable by the law merchant to the bank, and the bank assigned the judgment to the appellee. The appellee thus paid all the original debt except the one-fifth part thereof so paid by the appellant. The five makers of the original note owned equal interests in the horse. When the makers of the original note borrowed the money for which it was given, they agreed between themselves that each should pay one-fifth of the amount borrowed.
The questions saved and presented in this court may be disposed of by deciding whether, upon such a state of facts, the appellee was entitled to contribution from the appellant.
It is contended, in effect, that as the appellant paid in cash his agreed share of the original note, and as the balance thereof was paid to the bank by the promissory note, negotiable by the law merchant, of the other makers of the original note, the appellee could not acquire the right to contribution from the appellant by the appellee's final compulsory payment of the balance of the debt represented by the renewed promissory note, negotiable by the law merchant, given by the makers of the original note other than the appellant. Each of the makers of the joint obligation was principal as to his part, and co-surety for the others as to their respective parts. Goodall v. Wentworth, 20 Me. 322; Bragg v. Patterson, 85 Ala. 233, 4 So. 716. The right to contribution originated in equity, and is based upon natural justice. It applies to any relation, including that of joint contractors, where equity between the parties is equality of burden, and one of them discharges more than his share of the common obligation. Bragg v. Patterson, supra; Aspinwall v. Sacchi, 57 N.Y. 331; Sexton v. Sexton, 35 Ind. 88. Where a number of persons borrowed a sum jointly, but received different portions for their several uses, and one of the borrowers became insolvent, it was held that the others should contribute to pay his share, in proportion to the amount received by each. Kincaid v. Hocker, 7 J.J. Marsh. 333. In the case at bar the makers of the original joint note derived benefit equally from the proceeds of that note.
When there is an entire debt owed equally by several, the solvent debtors must share equally in any burden thrown upon them by the insolvency of a part of their number. North v. Brace, 30 Conn. 60, 72. Sureties who are insolvent are to be excluded in determining the proportions. See Newton v. Pence, 10 Ind.App. 672, 38 N.E. 484; Michael v. Allbright, 126 Ind. 172, 25 N.E. 902.
The agreement between the joint makers of the note that, as between...
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