Gould v. Fuller

The opinion of the Court was by Weston C. J. Where one of several co-sureties, receives security or moneys from the principal, the whole enures to the benefit of all the sureties. It has the same effect, as if so much had been paid by the principal himself to the creditor. Until an adjustment is made, whatever indemnity, or payment one receives, he must account for with his co-sureties. So the law was laid down by Jackson J. in Bachelder v. Fiske et al. 17 Mass. R. 464. To the same effect are the cases of Messer v. Swan, 4 N. H. R. 481, and of Low v. Smart, 5 N. H. R. 353. In Messer v. Swan it was held that in general, whatever payment one surety may receive from the principal, shall enure to the benefit of all. It was however there intimated, that where payment has been made, and the matter of contribution has been adjusted, each may-look to the principal for a reimbursement of his share, on his separate account. In the case before us, the plaintiff, in Oct. 1838, paid the balance of the whole debt, for which the defendant stood equally bound. This gave him a right to call upon the defendant for the one half of this sum, and for the other his remedy was against the principal. And it ought not to be impaired, by the neglect of the co-surety to pay his just proportion. When the whole of the obligation, for which both were liable, was discharged, the plaintiff’s claim for reimbursement against his co-surety and the principal, each for one half, became fixed. This should give to him. all the rights which would result from an actual adjustment between the parties. It is in fact an adjustment, which the law makes, arising from the equity of the case. [367] The claim for contribution, depends upon a doctrine purely equitable. Hence it is not enforced in favor of one surety against another, who became such at his request. Turner v. Davies, 2 Esp. R. 478. So if one surety actually pays, we do not feel the force of the equity, which would suspend his right to receive for his several benefit a reimbursement of one half from his principal, until it might suit the convenience of his co-surety to make contribution, or until he might be compelled to do so by an action at law. It would be withholding from a vigilant surety, in favor of a negligent one, an advantage to which he is well entitled. If the paying surety subsequently receive a sum of money from the principal, not claimed or specifically paid for his several reimbursement, it might enure to the joint benefit of himself and his co-surety. But if payment is paid and received, as it was here, to restore to him what the principal alone, and not the co-surety was bound to refund, it is only carrying out an adjustment, which the law imposes, and we perceive no good reason why the liability of the negligent surety should be thereby diminished. In our opinion the instructions requested of the presiding Judge should have been given. Deceptions sustained.