Greenville Supply Co. v. Whitehurst

Adams, J. The demurrer admits the plaintiffs’ allegations and by these allegations the nature of the action and the relation of the parties must be determined. The Greenville Supply Company, a corporation, became indebted to various parties in the sum of $96,928.56. The individual plaintiffs and the defendant, S. 0. Whitehurst, Sr., who were directors in the corporation, endorsed certain notes of the company under their mutual agreement that each endorser should be liable in proportion to the value of his stock. The endorsers agreed to raise $50,000, each to pay a specified sum. Whitehurst was to advance $9,966.78. He failed to do so, and the object of the action is to compel him to abide by his agreement. The law will not enforce a voluntary promise made without a consideration, but when several persons mutually agree to contribute to a common object which they wish to accomplish the promise of each is a consideration for the promise of the others, and such promises may be enforced by the party for whose benefit they were made. Baptist University v. Borden, 132 N. C., 476; Rousseau v. Call, 169 N. C., 173. The appellants rely in part upon the principle stated in these cases, but it is not germane; none of the creditors is a party to the action and none is seeking to enforce the alleged agreement. The suit is an action at law. It is not maintainable upon the equitable doctrine of specific performance for several reasons: (a) the plaintiffs *416 are not seeking tbe performance of a contract relating to tbe sale or transfer of personal property; (b) ■ tbe recovery of damages in ease of loss would be sufficient compensation; (c) tbe complaint does not bring tbe controversy within any of tbe exceptions to tbe general rule. It is equally conclusive that tbe ajjpellants cannot resort to tbe doctrine of contribution. Contribution is enforceable wben tbe complaining surety bas made compulsory payment. Bispham’s Principles of Equity, sec. 330; Hodges v. Armstrong, 14 N. C., 253; Lumber Co. v. Salchwell, 148 N. C., 316. There is no allegation that tbe appellants bave paid more than tbeir proportionate part or any portion of tbe sum for which 'Whitehurst is liable. Indeed, there is no allegation that tbe creditors bave brought suit, or that tbe principal debtor is insolvent, or that tbe sureties cannot recover against tbe principal any loss they may suffer by reason of tbeir endorsement. In Allen v. Wood, 38 N. C., 386, it is said: “Tbe equity of a plaintiff lies in tbe insolvency of tbe principals, where be is seeking contribution from a cosurety. Williams v. Helme, 16 N. C., 159; Rainey v. Yarborough, 37 N. C., 249; Bell v. Jasper, 37 N. C., 597; Mayhew v. Crichett, 2 Swans., 185; Daring v. Winchelsea, 1 Cox., 218. And tbe reason is obvious — tbe cosurety is bound to answer only in tbe place of bis principal, and, if be is able, it is tbe duty of tbe surety, who bas paid tbe debt to look to him; if be is not able, be then, and only then, bas a right to seek bis redress from bis cosurety. In this case according to tbe answer, and there is nothing in tbe evidence to contradict it, tbe money was sent to him by Joshua to indemnify him, and wben called on by tbe plaintiff be might well answer, go to tbe principal Wood or to tbe principal Ennis, they will pay you what you bave advanced. They are able to do so.” Judgment Affirmed.