Newcomb v. Gibson

Colt, J. The plaintiff claims contribution from the defendant for money paid to satisfy a judgment and execution recovered by Foss against them jointly, on a note payable to Foss or order, given by Smalley, and indorsed by the plaintiff and defendant. The judgment is prima facie evidence that the plaintiff and defendant were equally, as well as jointly, liable for its payment. If the defendant would escape his liability to contribute towards its payment, he must show that the relation between them was not that of joint principals or joint sureties in the original note, but that he became a party to the note for the benefit and accommodation of the plaintiff. For the purpose of ascertaining the relations of the parties to a promissory note with a view to the remedy between themselves, when one pays the whole, or more than his share, the fact may be proved by any competent evidence that one was principal and the other surety; or that one who appears on the note as first indorser was in fact a co-surety, with a subsequent indorser. The fact is collateral to the contract, and is no part of it. Weston v. Chamberlin, 7 Cush. 404. Nor is the evidence excluded when the contract is merged in a judgment; it is not offered to contradict [399] the judgment; and there is the same reason for its admission to show the relations of parties who are joint debtors, as there is for its admission to show the relations of joint debtors in a contract. Carpenter v. King, 9 Met. 511. Horne v. Bodwell, 5 Gray, 457. The main question in this case is whether the evidence produced by the defendant to relieve himself from his joint liability for this judgment was sufficient to warrant a finding in his favor. In the opinion of the court, it has no tendency to control the prima facie evidence of the judgment. The note was indorsed for the sole benefit of Smalley. The plaintiff received no part of the consideration. The sum agreed to be paid him for the use of the bonds lent by him to Smalley, and deposited as collateral security with the note, was entirely independent of the note. It does not affect the rights of the parties to this action, that Smalley obtained from the plaintiff the bonds pledged, or that Smalley had or had not paid for the use of the collateral security; or had given a mortgage to the plaintiff to secure the payment for such security; or had agreed to pay a high rate for the use of it; or had collected some of the interest due on the bonds while the same were pledged; or that the plaintiff and Smalley had unsettled accounts. The court ruled upon all the facts in the case, that the plaintiff was entitled to recover the amount claimed in his declaration, less the value of the bonds deposited as collateral security, of which the plaintiff had received the benefit. The amount claimed included the costs and expenses which accrued upon the levy of the execution, and which were paid by the plaintiff; and the remaining question is as to the right of the plaintiff to recover any part of these last-named items. The general rule is, that the right of contribution does not extend to any part of the cost paid or the expense incurred by one of two or more parties subject to a joint liability in attempting to defend himself against the claim, unless authorized by those who are jointly liable. Knight v. Hughes, 3 C. & P. 467. This rule does not apply where the cost is recovered in a judgment against all the joint obligors, for there the cost has become a common burden, and each may recover of the others for the payment of more than his due proportion. Boardman v. Paige, [400] 11 N. H. 431. Davis v. Emerson, 17 Maine, 64. It does not apply where the cost is sought to be recovered under a promise of indemnity. Hadsell v. Hancock, 3 Gray, 526. Duffield v. Scott, 3 T. R. 374. Bonney v. Seely, 2 Wend. 481. See also Chit. Con. (10th ed.) 524. The plaintiff is entitled to recover one half the amount of the judgment, including costs of suit, and also of the costs of the execution, because both judgment and execution were against him and the defendant jointly, and both were equally in fault in not paying, and the report does not show that any part of the costs accrued in levying the execution upon the property of either party. Judgment on the verdict.