Skrainka v. Rohan

• Citation: 18 Mo.App. 340
• Parties: W. SKRAINKA ET AL., Appellants, v. M. ROHAN ET AL., Respondents.
• Decision Date: 09 June 1885
• Court: Court of Appeal of Missouri (US)

18 Mo.App. 340

W. SKRAINKA ET AL., Appellants,

v.M. ROHAN ET AL., Respondents.

St. Louis Court of Appeals, Missouri.

Jun. 9, 1885.

APPEAL from the St. Louis Circuit Court, HORNER, J.

Affirmed.DAVID GOLDSMITH, for the appellants: The judgment establishing the lien is conclusive. Picot v. Signiago, 27 Mo. 125. The lien having been established as between the sureties and the creditor, has the like effect as between the sureties. The State to use v. Thornton, 8 Mo. App. 27. The right to mechanic's lien attached to the building in controversy. Schulenburg v. Railroad, 67 Mo. 442; Hill v. Railroad, 11 Wis. 214: Bottsford v. Railroad, 41 Conn. 454.

SMITH & HARRISON, for the respondents: A surety can recover contribution only where he has paid money on a joint co-liability of himself and his co-surety. Wharton Cont., sect. 765; Boardman v. Paige, 11 N. H. 431; Aspinwall v. Sacchi, 57 N. Y. 331. The right to a mechanic's lien did not exist against the property in controversy. Dunn v. Railroad, 24 Mo. 493; Schulenberg v. Railroad, 67 Mo. 442; McPheeters v. Bridge Co., 28 Mo. 465; Philipson Mech. Liens, sect. 180.

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

Alexander McCully contracted with the Missouri Pacific railroad company for the furnishing of materials and the construction of stone-work, on land owned by the company, for a large building, a comparatively small part of which was to be used for general offices, and the remainder as a freight depot, into which the cars of the company were to run. He executed a bond to the company, with the present plaintiffs and defendants as his sureties, in the sum of $5,000, with the condition that “the said Alexander McCully shall well and truly do and perform all said work, shall furnish the necessary material, labor, implements, and pay for the same, and shall otherwise well and truly comply with each and all the conditions of said contract, etc.” The plaintiffs, a partnership firm, allege that, upon McCully's breach of the condition, they were compelled to pay, and did pay to the obligee because thereof, the sum of $1,683.23, and pray for a judgment compelling the defendants, Rohan and Goetz, their co-sureties, to contribute two thirds of that sum. The judgment was for the defendants.

The plaintiffs were sub-contractors with McCully for furnishing stone, and defendant, Rohan, was a subcontractor for furnishing sand. Each of them sued McCully for a balance due, and the railroad company, in the same proceeding, for foreclosure of a mechanic's lien on the lot and building. Rohan obtained a personal judgment against McCully for $565, but the lien was denied him as the record states, on two grounds: 1. That it was not lawful to enforce a mechanic's lien against the property of a railway company; and, 2. That Rohan, being a surety on the contractor's bond, could not pursue a lien which the bond was intended to prevent. The present plaintiffs got judgment against McCully for $4,079.44. and their lien claim was settled by agreements with the railway company to the following effect: The company withdrew its opposition to the lien, and waived its right of appeal from the judgment to be rendered thereon. The plaintiffs agreed not to enforce the judgment for a greater amount than the money actually in the company's hands as a balance due to McCully, “until such time as the said Missouri Pacific railway company will have enforced its claim against the sureties of said McCully, or either of them, on the bond herein above mentioned, for the excess that it may be adjudged to pay to said lienors over and above the amount in its hands.” The company agreed to “institute such suit against the said sureties, or some of them, at the earliest practicable time, and to push the same to final judgment as speedily as practicable: the said Skrainka and Vieths agreeing to aid it by all legal means to bring about such final adjudication without delay.” After entry of the judgment, formal instruments of release and receipt were exchanged by the parties. The release executed by the plaintiffs recited that the company had paid to them in cash the sum of $2,552.01, which was the whole amount due from the company to McCully, and had paid to them the remainder of their judgment, amounting to $4,234.24, by giving them a receipt for $1,683.23, in full satisfaction of the company's demand against the plaintiffs as sureties on the forfeited bond of McCully. The plaintiffs' release of their lien was declared to be ““absolute and not conditional,” with the understanding, however, that if it should thereafter appear that an additional sum was due from the company to McCully, such additional sum should be refunded to the plaintiffs, as an overpayment erroneously made by them on their liability as McCully's sureties. The company delivered a receipt to the plaintiffs, acknowledging full satisfaction of their liability on McCully's bond. This transaction constitutes the basis of the plaintiffs' claim for contribution from the defendants.

The right to contribution from co-sureties is strictly confined to cases of compulsory payment by the complaining surety. Compulsion in this sense, does not always mean the actual levy of an execution, or even the rendering of a judgment. If there is a clear legal duty to pay, which may be enforced by judgment and execution, the party is not required to await an additional imposition of costs in the application of those remedies. If a judgment has been recovered against the paying surety, which the co-surety had an opportunity of defending against, it will be binding on such co-surety, and contribution may be enforced, as a general rule. But if the co-surety had no such opportunity for defending, he may attack...