Bunker v. . Llewellyn

WiNBOENE, J. In view of the fact that the demurrer is overruled on the ground that the complaint states a cause of action in equitable contribution, it may well be contended that in so far as the rulings adverse to plaintiffs are concerned this appeal is premature. But, be that as it may, a review of the rulings to which plaintiffs object fails to disclose error in the judgment rendered. (1) Whatever the agreement may have been between plaintiffs and the bank, on which plaintiffs undertake to state a cause of action, there is no allegation that the defendants, appellees, were parties thereto. (2) The allegation that plaintiffs satisfied the bank and took up the note under express agreement with it that “their taking up” the note was not to constitute.a payment and satisfaction of it, but that they were to “have the rights of the bank to collect from the other signers and makers,” may fairly raise the question as to whether the plaintiffs are the real parties in interest. The ruling that plaintiffs are the real parties in interest must be read in connection with ruling that the complaint states a cause of action for equitable contribution. But if plaintiffs be the owners of the note, the allegations are tantamount to saying that plaintiffs paid the bank and took up the note. *4 If so, plaintiffs and defendants being coprincipals and all equally liable on the note, such payment constitutes extinguishment of the note. Sherwood v. Collier, 14 N. C., 380; Brown v. Long, 36 N. C., 190; Runyon v. Clark, 49 N. C., 52; Hanner v. Douglass, 57 N. C., 262; Davison v. Gregory, 132 N. C., 389, 43 S. E., 916; Banh v. Hotel Co., 147 N. C., 594, 61 S. E., 570; Liverman v. Cahoon, 156 N. C., 187, 72 S. E., 327; Hoft v. Mohn, 215 N. C., 397, 2 S. E. (2d), 23. In such event their remedy against the defendants, their coprincipals, would be in equitable contribution. Moore v. Moore, 11 N. C., 358; Powell v. Matthis, 26 N. C., 83; Allen v. Wood, 38 N. C., 386; Adams v. Hayes, 120 N. C., 383, 27 S. E., 47; Petree v. Savage, 171 N. C., 437, 88 S. E., 725; Harvey v. Oettinger, 194 N. C., 483, 140 S. E., 86. Subrogation would not lie. Liles v. Rogers, 113 N. C., 197, 18 S. E., 104; Joyner v. Reflector Co., 176 N. C., 274, 97 S. E., 44; Wallace v. Benner, 200 N. C., 124, 156 S. E., 795. The judgment below is Affirmed.