Weeks v. Parsons

• Decision Date: 16 October 1900
• Citation: 58 N.E. 157,176 Mass. 570
• Parties: WEEKS et al. v. PARSONS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

176 Mass. 570

58 N.E. 157

WEEKS et al. v. PARSONS.

Supreme Judicial Court of Massachusetts, Suffolk.

October 16, 1900

COUNSEL Blaney & Robinson, for plaintiffs.

W. O Kyle, for defendant.

OPINION

MORTON J.

We see no error in the rulings or refusals to rule. The court found that there was an understanding between the directors that they should indorse the notes for the benefit of the corporation, and that it was intended and understood that the indorsements were to be joint, and not several. There was evidence warranting this finding, and it follows from it that the indorsers were, as between themselves cosureties. It was not necessary that there should be a contract, in so many words, to sign as co-sureties. It was sufficient if it appeared, taking all of the circumstances into account, that that was the nature of the liability which, as between themselves, the parties intended to assume and did assume. Clapp v. Rice, 13 Gray, 403; Mansfield v. Edwards, 136 Mass. 15; Mulcare v. Welch, 160 Mass. 58, 35 N.E. 97; Hagerthy v. Phillips, 83 Me. 336, 22 A. 223; Macdonald v. Whitfield, 8 App. Cas. 733.

We interpret the refusal of the court to find whether there was an express contract or not as meaning that, as the court in substance ruled, it was not necessary to show an agreement in so many words. In view of the finding as to the intention and understanding of the parties, it is manifest that the defendant was not harmed by the refusal of the court to find that there was not an express agreement, using the word 'express' in the sense which we have given to it above. It is too well settled to require any extended citation of authorities that it may be shown by parol evidence that, as between themselves, the relation between successive indorsers is that of co-sureties. Clapp v. Rice, supra; Mansfield v. Edwards, supra. It is also well settled that indebitatus assumpsit will lie by one surety against another on the contract implied from their relation as co-sureties, to recover from him his share of the amount paid in settlement of the common liability. Bachelder v. Fiske, 17 Mass. 464; Mansfield v. Edwards, supra. 'The right of contribution does not arise out of any contract or agreement between co-sureties to indemnify each other, but on the principle of equity which courts of law will enforce, that where two persons are subject to a common burden it shall be borne equally between them. In such cases the law raises an implied promise from the mutual relation of the parties.' Warner v. Morrison, 3 Allen, 566.

Even if there had been an express agreement to contribute, it would not have followed that indebitatus assumpsit would not lie and therefore the ruling that was asked for to that effect was rightly refused. Gibbs v. Bryant, 1 Pick. 118. But it was not...