Security Insurance v. St. Paul Fire & Marine Insurance

Pardee, J. (After stating the facts.) By the terms of the agreement the signers jointly subjected themselves to liability to all persons rendering service at the request of their agent, the committee. And this upon the equitable principle that when several persons desire to bring about the same result, one which will be of pecuniary advantage to each, and agree to unite and make common cause each with all others in the undertaking, and join in the appointment of the same agent for the accomplishment of their purpose, as between themselves each is bound to contribute his proportion to the consequent expense; that proportion to be determined by the number uniting, or by a rule established by themselves, or by such equities as may arise from the circumstances attending the transaction. And, if one of them pays, either upon the judgment of a court or voluntarily, a claim justly due from all, each of the others is under obligation so to contribute to his repayment as that the final result shall be that each solvent person has paid his proportion; the person voluntarily paying the whole assuming the risk of the invalidity of the claim, but not the risk of the insolvency of a joint contractor. The provision in the contract as to payment pro rata, is to be read as if it expressed that the division is to be among solvent signers only; and it is applicable to them only; it has no effect upon those serving them; it determines that the expense is not to be divided per capita but in proportion to the amount insured by each, to the benefit to be derived by each from a successful resistance to the demands of the insured. Therefore it was in the power of Woodward to make all of them defendants in one suit for his entire claim; he was under no obligation to enforce it in fractions against each separately; nor did he take the risk of loss resulting from the insolvency [245] of any. And choosing to sue this plaintiff alone, in the absence of a plea in abatement for non-joinder of the others he might legally have judgment for the whole. And the plaintiff was under no obligation to the others to plead in abatement in the absence of any request, they having knowledge of the suit and an opportunity to join in the effort to defeat it. Whether the plaintiff gave such notice of the suit to the defendant that the judgment concludes the latter as to the amount due, is of no consequence, since the petition alleges, and the demurrer of course admits, that the bill of Woodward “ was approved by the committee and was reasonable.” The plaintiff could therefore have safely paid it without waiting to be sued. This being so, the question arises how the plaintiff can justly call on the defendant to contribute to the expense of defending against that suit. The expense of that defence was about $900. Why should the plaintiff have incurred this expense in resisting a reasonable claim, and after making an ineffectual resistance why should the plaintiff look to the defendant for its share of that expense ? This claim is a plausible one, but the peculiar facts of the case show the groundlessness of it. The plaintiff presumably could not have known that the claim was a reasonable one until it had been investigated in court and so found. But aside from this, it is alleged and by the demurrer admitted, that “the defendant [in this suit] claimed that the bill of Woodward was unreasonable in amount.” This being so, it was both reasonable in itself, and due to the defendant, that the bill should not be paid without a judicial investigation, and of course the expense of that investigation should be shared by all the parties interested, especially in view of the original agreement of the several insurance companies to make common cause in the whole matter. It is of course to be understood that the judgment obtained against the plaintiff by Woodward does not become judicially conclusive upon the present defendant by reason of the propriety of the making of the defence by [246] the plaintiff, but tbe' facts have tbeir operation merely in making it reasonable that the expense of that defence should be shared by the parties interested. Each signer was responsible to Woodward for his entire claim; each was alike exposed to a judgment in his favor for the whole; therefore the duty of payment was upon all alike. It fell to the lot of the plaintiff to be made sole defendant in a suit by Woodward for the whole, and to be compelled to pay it; it is not inequitable for it to put upon any one of its co-signers one half of the burden which it has been compelled to assume. And if it is driven to the necessity of asking a court of equity to compel contribution and can find but one solvent co-signer within the jurisdiction of that court, it is entitled to a decree for contribution to the extent of one half of the amount paid by it. The plaintiff and defendant can each thereafter enforce contribution against co-signers in other jurisdictions, or submit to an equal loss as they may prefer. So far as this jurisdiction is concerned, a burden which two are to bear, will press with equal weight on both. The Superior Court is advised that the complaint is sufficient. In this opinion the other judges concurred.