Stallworth v. Preslar

STONE, J. When two or more persons jointly become sureties for another, on a note for the payment of money, each surety becomes liable to the other to pay his share of the liability, in the event the principal fails to do so. Pait v. Pait, 19 Ala. 713; White v. Banks, 21 Ala, 705; Taylor v. Morrison, 26 Ala. 728; Martin v. Baldwin, 7 Ala. 923. In such ease, if the principal fails to pay, and one of several sureties is forced by suit to pay the debt, there accrues to the surety so paying, at the time of the payment, a right of action against his co-surety for contribution. The surety sued need not wait until the money is forced out of him by execution. He may pay as soon as judgment is recovered against him, or his liability otherwise fixed and matured, and does not thereby forfeit his right to contribution -from his co-sureties.. Money thus paid is, to the extent of the liability of the co-surety to contribute, considered in law as paid at the special instance and request of the co-surety; and at that precise time, the cause of action to recover, on such implied promise accrues, without reference to the time when the original contract matured. — Knox v. Abercrombie, 11 Ala. 997; Broughton v. Robinson, 11 Ala. 922 ; Roberts v. Adams, 6 Por. 361; Young v. Clark, 2 Ala. 264; May v. Long, 6 Ala. 107; Martin v. Baldwin, 7 Ala. 923; Jones v. Lightfoot, 10 Ala. 18; Hooks v. Br. B’k Mobile, 8 Ala. 580; Couch v. Terry, 12 Ala. 225; Pearson v. Gayle, 11 Ala. 278; 1 Parsons on Contracts, 32 to 37. [2.] The fact that Mr. Stallworth, for the sum of $1000, discharged the debt for which he and Mr. Preslar were liable as sureties, can have no effect on the rights of the parties, farther than to reduce the amount of the latter’s liability. Iii this class of cases, equality is equity; and the debt having been, as it "is contended, discharged by the payment of $1000, Mr. Preslar is only liable to contribute his proportion of that sum, with interest from the time of payment. — Steele v. Mealing, 24 Ala. 286; Br. Bank of Mobile v. Robertson, 19 Ala. 798; Cullum v. Br. Bank of Mobile, 23 Ala. 797; Martin v. Baldwin, 7 Ala. 923; Pinkston v. Talliaferro, 9 Ala. 547; Bizzell v. White, [510] 13 Ala. 422. It may, without affecting the result of this case, be conceded, that unless tbe plaintiff' can show that he has'paid a greater sum than the defendant remains liable to pay, he cannot maintain this action. — See Ex parte Gifford, 6 Vesey, 805. If, however, the entire liability is discharged — canceled—against both sureties, then the plaintiff has paid a greater sum than the defendant can ever be required to pay to the creditor; for he can never be required to pay anything to him. In such case, if he is not liable to his co-surety, he is liable to no one. The result of the rule contended for would be, to give him the benefit of the plaintiff’s bargain, without-imposing on him any of its burdens. Suppose the compromise, or accord and satisfaction, had proceeded on the terms of the payment by Stallworth of one-half the liability, and for that consideration the creditor had canceled the entire liability as against all the obligors. Is it not manifest that, under such a rule, Preslar would become the recipient of all the benefits of Stallworth’s bargain? This could not be equity, because it is not equality. Under well defined rules, Stallworth, at the time he made the payment, had the clear right to pay the entire debt, and then to recover one moiety thereof from Preslar. To hold that, because he secured better terms than the lawr required he should demand, he thereby forfeited his right to contribution, would lead to the most shocking injustice. Another view of this question: Suppose Mr. Stallworth had paid to Halsey, Utter k Co. their entire demand, and had subsequently received from Watts, his principal, indemnity for one-half the amount; or suppose an execution, issued upon the judgment, had been levied, as to half the amount, of the goods of Watts; and he, Watts, having no other effects, the remaining half had been paid by Stallworth. If, in the case first supposed, Stallworth had sued Preslar for contribution, the latter could claim an equal benefit in the indemnity furnished by Watts, their common principal. — Bizzell v. White, 13 Ala. 422; Pinkston v. Talliaferro, 9 Ala. 547. Being, under this' rule, entitled to share in all the advantages, secured by [511] bis co-surety’s diligence, be must, to tbe extent of bis share of the mutual liability, contribute to tbe burdens which that liability imposes. These rules show clearly that tbe circuit court erred in sustaining defendant’s demurrer to the first count of tbe complaint. TJnder tbe rules above declared, the plaintiff’s right to recover in this action, depends on the fact that be and the defendant were co-sureties of Mr. Watts, their coni-mon principal; and that after default by the principal, the plaintiff has paid more than his pro-rata share of the liability. This, we have seen, does ¿not render it necessary that he shall have paid more than one-half of the original liability, provided the debt to the creditors has been extinguished as against all the obligors. Proof, then, of these facts, makes a prima-facie case for recovery. Any testimony which legitimately tends to establish either one of these facts, is legal and competent, and should not be rejected. [8.] If, in the present suit, it were necessary that the plaintiff should base his right of recovery on the assignment of the debt or judgment to him, it may, perhaps, admit of question, whether he could, in an action at law, be allowed to prove, by parol, that there was a mistake in the written contract. We need not and do not now decide this question. His right, however, in this connection, was dependent, not on the assignment to, but on the payment of the judgment by him. The paper evidence, so far as it was a mere receipt for money, was open to explanation or contradiction by oral evidence. — 1 Greenl. Ev. § 305. In point of fact, the judgment in favor of Halsey, Utter & Co. v. Watts and Stallworth, though rendered by the county court of Monroe, was, at the time of its liquidation by Stallworth, pending in the circuit court of that county; the county courts having been before that time abolished, and their records transferred to the circuit courts. — See Glass v. Glass, 24 Ala. 468. The oral testimony of the witnesses, tending as it did to show that the payment made by Stallworth was on the [512] judgment rendered by the county court, should have been received. The judgment of the circuit court is reversed, the non-suit set aside, and the cause remanded.