Tyus v. De Jarnette

G-OLDTHWAITE, J. —In White v. Banks, 21 Ala. 705, we held, that the right of contribution among' sureties was not founded on contract, but was the result of a general equity on the ground of equality of burden and benefit; and this 'equity, as it is based alone on the duties of the parties arising from the peculiar situation they occupy to each other, is not affected by any agreement or arrangement made by one.with the principal for his individual benefit, during the existence of that relation. Hence, the mere fact that indemnity was obtained by one surety, upon an understanding with the principal creditor that it should be used solety for his protection, would not prevent his companions from sharing in it on equi [289] table terms. We held, however, in the same case, that as this rule was founded on principles of natural justice, courts would not enforce it when the circumstances of the case rendered its application inequitable. Applying this doctrine to the present case, the only question is, whether such a state of facts is made out by the evidence, as should take it out of the general rule, and bring it within the exception. The answers deny that the debts which were received by the appellees as separate indemnity, were to be held as collateral security for the principal debt; and the evidence of the witness Simpson shows, we think, very clearly, that there was no such agreement. James T. De Jarnette, who was examined as a witness on the part of the appellee Wm. P. De Jarnette, states that, after the parties had become sureties, the principal debtor told him, that he had promised Wm. P. De Jarnette that the amount owing by him (about fourteen hundred dollars) should be held as collateral security until the principal debt was due ; and if William P. De Jarnette had anything to pay, it would not exceed that amount. Conceding for argument’s sake the competency of this testimony, it certainly does not tend to establish any agreement, or understanding, that the other sureties were to look to this debt, as indemnity for themselves. If anything, it tends to prove that, if Wm. P. De Jarnette paid, as surety, the amount of his indebtedness to Simpson, he could, as that debt was to be indulged until the principal debt fell due, look to it to reimburse himself. There is no evidence tending to establish the charge that the debts OAving by the appellees were agreed to be held as security for the benefit of all; and as tlie testimony clearly establishes they were received by the appellees as the separate indemnity of each, the only question, as we have said, is, whether under the circumstances the appellants are entitled to share in them. As to Wm. P. Do Jarnette, it is shown clearly, that the appellants consented, that if Simpson failed to make the arrangement proposed by him, and assented to by all the parties, then he might receive his own notes for his separate indemnity. This was an express waiver, on the part of Ms co-sureties, of their right to participate in such indemnity, and we must hold them bound by it. If it were otherwise, a party might be [290] lulled into a false sense of safety by the act of his companions, and thus be prevented from effectually protecting himself by obtaining additional security. There are many cases in which an equity can be waived or discharged by parol (Walker v. Walker, 2 Atk. 93; Lake v. Lake, Amb. 126; Roe v. Popham, Doug. 24; Price v. Dyer, 17 Ves. 356); and the same principles of natural justice, which create the equity of contribution between co-sureties, would discharge it, when the parties themselves expressly consented, to waive it. As to the other party, James T. De Jarnette, there is more difficulty. The just application of the principles we have just asserted requires, that the waiver of a surety to his right of contribution should be fully and clearly established by the evidence ; and our first impression was, that the testimony was sufficient on this point as to both of ihe appellees ; but more mature consideration has satisfied us, that our conclusion in this respect was wrong, and that as to. James T. De Jar-nette the facts established by Simpson, who is the only witness so far as he is concerned, do not prove a waiver of their equity on the part of the appellants. That the appellants were opposed to Simpson’s making an assignment for the protection of all the parties, for the reason that it would injure his credit, is entitled' to no weight upon the question we are now discussing. It tends to show that they were not so much alarmed as to their situation as the other party, and not so eager to obtain indemnity; but it cannot be fairly regarded as any evidence of an intention on their part to relinquish rights to which they. were by law entitled, — the more especially as another proposition was made, to which they all consented, and which left the relative equities of all precisely as they were. Independently of this evidence, the only fact we can look to, as even tending to establish' the waiver, is, that the appellants made no objection, when James T. De Jarnette said, in their hearing, that if Simpson failed to carry out the arrangement which was to relieve him, he should take measures to secure himself, and that when he expressed his uneasiness as to his situation, Holmes replied, that he did not feel tmeasy. This is not enough to satisfy us clearly, that the appellants intended to waive any of their legal rights. There js no proposition of this kind made. What was said amounts [291] to nothing more than a mere declaration of intention on the part of one surety, in a certain event, to secure himself, made, apparently, without reference to the assent or dissent of his companions, and not naturally calling for an answer from them. Indeed it does not even appear that the remark was addressed to them. It is most probable, we agree, that by this declaration he intended to express Ms intention of obtaining separate indemnity, and the other parties may have so understood him ; but we cannot say this, speaking from the testimony alone, with any degree of certainty. They may have supposed that he intended to secure -himself by obtaining full indemnity for the debt. The rule in relation to admissions, to be inferred from acquiescence in the verbal statements of others, should be applied with great caution ; “ and it must plainly appear that the language was fully understood by the party, before any inference can be drawn from his passiveness or silence, and must be such as would properly and naturally call from him some reply.”—Greenl. Ev. §§ 197, 199. We have found no case which has gone so far as to interpret mere silence, or such an answer as was given by Holmes, in a case like the present, into a consent to give up a right, and should regard it as unsafe and dangerous to establish such a precedent. Our conclusion is, that the evidence fails to establish any discharge of the equity of the complainants below as to the indemnity received by James T. De Jarnette, and in that they must be allowed to participate. The decree must be reversed, and the cause remanded. But as to the costs in this court, as the decree has been impeached as tó Wm. P. De Jarnette, we think it right that the appellants, as they have failed in the ground taken in respect to him, should pay half fche.costs ; the other half must be taxed against James T. De Jarnette.