Cotting v. Otis Elevator Co.

Sheldon, J. There is no doubt that a plaintiff who is either a surety or has in equity the rights of a surety for an actual debt, or. who is under a merely secondary liability for the discharge of an existing obligation, may in equity compel his principal, or the person who by contract with himself or with his privity has incurred the primary liability, to pay the debt or perform the obligation and thus free the plaintiff from a charge or burden which, to his relief, ought to be borne by the principal or the primary debtor. If it were necessary to cite authorities for this undisputed proposition, those referred to by the plaintiffs in their brief would abundantly establish it. But the plaintiff who seeks such relief must be under an existing and admitted liability to the burden [297] or charge from which he seeks to be relieved, or at least the facts must be such as necessarily to create such a liability. Antrobus v. Davidson, 3 Mer. 569, 580. Hughes-Hallett v. Indian Mammoth Gold Mines, 22 Ch. D. 561, Ascherson v. Tredegar Dry Dock & Wharf Co. [1909] 2 Ch. 401, 409. In the case of In re Richardson, [1911] 2 K. B. 705, as in most of the other cases relied on by the plaintiffs, there was such an admitted liability. In the case at bar the plaintiffs do not concede that they are under the liability from which they seek to be exonerated. Their allegations go no further than to say that if Siegel or Vogel or the Siegel Company shall hereafter sue them and shall succeed in showing that they are liable for a breach of their agreement to construct a substantial building suitable for the stipulated purposes, then that liability of these plaintiffs will not be due to any independent act or omission of their own, but solely to the breach by the Otis Company of the terms of its contracts with the plaintiffs. Indeed, there is no direct averment that the Otis Company has committed such a breach; the allegation is merely that the Siegel Company so claims. The bill cannot be maintained upon such averments. We need not consider whether this difficulty goes absolutely to the merits of the plaintiffs’ right to relief, or whether the bill could have been maintained if Pepper, acting really as the agent and for the benefit of the Otis Company, had recovered a judgment in New York against the Siegel Company upon claims which arose merely by reason of the Otis Company’s breach of its agreements with the plaintiffs, and if the plaintiffs admitted their liability to the Siegel Company for the amount of such judg-; ment. This demurrer must be sustained in any event; and under the agreement of the parties stated in the report the bill must be dismissed with costs. So ordered. ',