Blake v. Cole

Putnam J. delivered the opinion of the Court. No question can be made of the general rule, that if one surety pays the whole debt or'more than his part, he has a right to recover at law a contribution against his co-surety. Batchelder v. Fiske, 17 Mass. R. 468. The defendant then must be charged, unless he can show some defence exempting him from the operation of the general rule. And for this purpose he relies upon the fact, that he became surety at the request of the plaintiff’s intestate, upon his verbal promise to indemnify him. It is contended for the plaintiff, that the verbal promise was void by the St. 1788, c. 16, § 1, commonly called the statute of frauds, as it was a special promise to answer for the debt, default or misdoing of another person, upon an agreement that was not to be performed within the space of one year from the making thereof. And the plaintiff says, that by no possibility could the bond be performed within the year. The plaintiff relies much upon the case of Boydell v. Drummond, 11 East, 155, relating to the publication of prints from the scenes in Shakspeare’s plays ; where it was held, that it must be a complete performance within the year, to take the case our [100] of the statute. And the court said, that the whole woik could not have been obtruded upon the subscribers at once, so as to have entitled the publishers to demand payment of the whole within a year. But the bond in the case at bar might be forfeited for breaches within the year; and such forfeiture would have rendered the sureties liable to a judgment for the penalty. The administrator, for example, was liable to claims of creditors within the year, which were not affected by the insolvency of the estate, and it might be that these debts would absorb all the property, and so the estate would be settled within the year, and the contract would thus be completely performed within the year. It might be, that a forfeiture would be incurred for not returning an inventory within three months, or that the principal in the bond might have rendered himself liable for waste, within the year ; and other causes of forfeiture might have happened within the year, which would have subjected the sureties to judgment for the whole penalty of the bond. Comyn on Contr. (3d Amer. edit.) 232. The statute does not embrace cases which may be performed in a year, or which depend on a contingency. It must be an express and specific agreement not to be performed in one year, to come within the act. If it may be performed within the year, it does not come within it. Moore v. Fox, 10 Johns. R. 244. Thus, where the promise was to pay so many guineas on the day of the plaintiff’s marriage, it was held not within the statute Where the promise was upon a contingency, and it did not appear that it was to be performed after the year, there a note in writing was held not necessary, for the contingency might happen within the year. Peter v. Compton, Skin. 353. So, where it was to pay so much money on the return of such a ship which ship happened not to return in two years, it was held bv all the judges that it was not within the statute, for by possi bili.ty the ship might have returned within the year. It applies to a promise where by the express appointment of the party it is not to be performed in a year. Anon, 1 Salk. 2S0. So in Fenton v. Emblers, 3 Burr. 1278 ; the statute applies to promises expressly and specifically agreed not tr be performed [101] within the year ; nor is any case upon a contingency within it. Smith v. Westall, 1 Ld. Raym. 316 ; Gilbert v. Sykes, 16 East, 150. A surety may by contract take himself out of the liability to contribute; as in Craythorne v. Swinburne, 14 Ves. 150, it appearing by parol evidence, which was held to be admissible, that the defendant was not co-surety, but that without the privity of the other surety he became surety for the principal and the other surety. We think that the evidence in the case at bar brings it within the principle of the case last cited. •From the evidence properly introduced in the case, the right of the plaintiff’s intestate to have a contribution of the defendant, is completely rebutted ; for the defendant became surety at the request of the intestate, and upon his verbal engagement to indemnify him. 1 Story’s Equity, 477. The principle is recognized by Parker C. J., in Taylor v. Savage, 12 Mass. R. 98. “ It is settled that when a surety joins in the bond at the request of him who sues for contribution, he shall not be held to pay.” In the case at bar the defendant refused to sign the bond at the request of the principal, and the intestate induced him to sign it: “ Well,” said he, “ if you will not do it for him, do it for me ; I will hold you harmless.” And thereupon the defendant executed the bond. We think that the intestate had no right, against his agreement, to call upon the defendant for contribution. His relation to the defendant was rather as a principal, for whom the defendant became under an obligation. But although it seems to the Court to be clear that the plaintiff ought not to recover, yet we think that acting, as he does, as an administrator of the estate, in which the widow and heirs are greatly interested, it was proper for him to present the claim for the consideration of the Court. Plaintiff nonsuit.