Prescott v. Newell

Tlie opinion of the court was delivered by Barrett, J. The right of the plaintiffs as sureties of Miller & Trull to maintain a joint action against the defendant for contribution as a co-surety for what they have paid on the debt of their principals, depends on the fact of their having made that payment jointly, either out of a fund owned by them jointly or by some equivalent means. In this respect they stand upon the same ground of right as they would against the principal to recover for payments made by them as his sureties, as was the case in Whipple et al. v. Briggs, 28 Vt. 65. The fact of joint payment out of joint means is essential to the right of joint action. In this case, what the plaintiffs paid before the giving of the note, was not by way of joint payment. Each paid of his own separate means. The agreement between them to stand together and share and discharge the burden equally, does not constitute the joint relation and co-operation which the law requires. For the payments thus made we think the plaintiffs are not entitled to recover in the suit. But we regard the giving of the joint note, which was received in payment and discharge of the debt, on which the parties to this suit were co-sureties, as being a payment jointly made. The note being so received operated the payment, and thereupon the right of action for contribution would accrue. The manner in which that note was paid by the plaintiffs could not affect the joint relations and rights that were created by its being given and received in payment and discharge of the original debt. Upon the evidence in the case it might properly be found that Howe was a mere surety of the plaintiffs on said $600. note. His relation and character as the signer of .that note were fixed by the agreement and understanding between himself and the plaintiffs in pursuance of which he so signed, and not by operation of law predicated upon the fact that he was co-surety with the plaintiffs and the defendant for Miller & Trull. The fact of Howe’s becoming surety on said note would not of [87] itself operate an agreement on the part of the plaintiffs not to pursue him for contribution till the note should have become due. His becoming such surety would not’ necessarily grow out of the fact of his being co-security for Miller & Trull. That fact laid him under no legal obligation to become surety of the plaintiffs on said $600. note. It would need, therefore, something more than the mere fact of his becoming such surety to constitute or show an agreement by the plaintiffs to delay enforcing contribution against him as co-surety with them for Miller & Trull. The judgment is reversed, and, on the special finding in the verdict, judgment is rendered for the plaintiffs for $271.84, and costs in the county court, deducting the defendant’s costs in this court.