Singleton v. Shepherd

• Decision Date: 07 February 1917
• Citation: 183 S.W. 1077,196 Mo.App. 505
• Parties: E. U. SINGLETON, Respondent, v. H. C. SHEPHERD, Appellant
• Court: Kansas Court of Appeals

183 S.W. 1077

196 Mo.App. 505

E. U. SINGLETON, Respondent, v. H. C. SHEPHERD, Appellant

Court of Appeals of Missouri, Kansas City

February 7, 1917

196 Mo.App. 505 at 509.

Original Opinion of February 7, 1917, Reported at: 196 Mo.App. 505.

OPINION

ON MOTION FOR REHEARING.

ELLISON, P. J.

--Plaintiff's motion for a rehearing is but a re-statement of what he urged in his briefs and at the argument. It is without merit. He insists that we have overlooked the following authorities cited by him which he states directly control this case, viz; Stallworth v. Preslar, 34 Ala. 505; Werborn v. Kahn, 93 Ala. 201, and Boutin v. Etsell, 110 Wis. 276, 85 N.W. 964. We did not over look them. We cited the first one in the foregoing opinion, and we do not understand why he should consider either of them as favoring his view. They determine, as we have, that if one of several co-sureties compomises or settles the debt with the creditor for himself and his co-sureties, even though he pays a sum less than would have been his own share of the whole debt as between them, he may demand contribution from them. In each of those cases the plaintiff discharged the entire liability against himself and his co-sureties. In this case, plaintiff settled his own portion of liability but did not settle any of defendant's for the simple reason that defendant had done that for himself.

Each of two sureties owes the entire debt to the creditor and if he releases one he releases the other for one-half the debt; but, as between themselves, each owes one-half the debt and if one settles his half at a discount, we do not see why the other should ask him to come in and help settle the other half.

To the authorities cited in the foregoing opinion we add the following; Morgan v. Smith, 70 N.Y. 537, 541; Benedict v. Rea, 35 Hun 34; Gross v. Davis, 87 Tenn. 226, 11 S.W. 92; Durbin v. Kuney, 19 Ore. 71, 23 P. 661; Gordon v. Moore, 44 Ark. 349; Pegram v. Riley, 88 Ala. 399, 403, 6 So. 753; Fletcher v. Grover, 11 N.H. 368; Smith v. State, 46 Md. 617, 619; Ex parte Gifford, 6 Ves. 805; Davies v. Humphries, 6 M. & W. 153, 168; Ex parte Snowden (1881), 17 Ch. Div. 44, 47; Cowell v. Edwards, 2 Bos. & P. 268; Browne v. Lee, 6 Barnes & Cress 689.

The text-writers seem all to agree on the question; Stearns Suretyship, p. 170, sec. 114; p. 522, sec. 286; p. 534, sec. 293; Burge on Suretyship, p. 386 (bottom); Smiths Principles of Eq., p. 329; 2 Parson on Notes & Bills, p. 253; 4 Pomeroy Eq. Jur., sec. 1418; 2 Beach Eq. Jur., sec. 822; 1 Brandt on Suretyship, secs. 279, 313.