Mosely v. Fullerton

Gill, J. The claim for set-off made by defendants may be stated in this wise: Fullerton and Mosely, as sureties for McGreorge, by their joint bond, covenanted tq protect the Andrew county church from .all mechanics’ lien charges which the contractor, McGreorge, might allow to accrue. Said contractor failed to pay for all the material that went into the church, and the enforcement of a valid lien for $259.25 was threatened. Thereupon Fullerton paid off or assumed the entire charge and relieved the church from- the mechanics’ lien, and now claims the right to hold Mosely for his proportionate share. This claim is based on the right to contribution existing between cosureties. But Mosely claims that he is relieved of the obligation to contribute, because Fullerton has acquired from. McGreorge, their principal, mortgage security for the payment of said $259.25, and that this indemnity must be exhausted before an action.for contribution will lie. It is only fair to say that plaintiff’s, counsel have cited cases which sustain this contention. But in our [150] opinion, reason and the weight of authority sustain the text of'an able author on the subject, wherein it is said: “That the fact that the surety who pays the debt has in his hands an indemnity other than money and more or less valuable, will not prevent him from suing a cosurety for contribution, and recovering such amount as he is then entitled to, irrespective of the sum that may afterwards be realized from the indemnity ; but he will be accountable to the cosurety for a proper proportion of whatever sum he may afterwards realize from the indemnity.” 1 Brandt on Suretyship and Guaranty [2 Ed.], sec. 274; Bachelder v. Fiske, 17 Mass. 464; Johnson v. Vaughn, 65 Ill. 425. When one of two or more sureties shall have paid or satisfied the entire charge or liability, a debt or obligation forthwith arises, by implication of law, against each surety to pay his proportion to the surety who has paid the whole; and at the same time there is an implied obligation on the principal to reimburse the surety who has thus paid said principal’s debt. In other words, the surety so satisfying the entire obligation will have his several and separate demands against his cosureties for their proportionate part and against his principal for the entire amount. However, said surety will only be entitled to one satisfaction. If the principal shall return the entire amount which the surety had been compelled to pay, this will satisfy every demand for contribution against the other sureties. Or, if said sureties, or any of them, shall partially or entirely reimburse their cosurety, who paid the debt, then he will only have a claim for the balance against the principal, or for nothing, as the case may be. In the light of the law, the case stands this way: Because of Fullerton’s paying or assuming the $259.25 (for which McGeorge was bound as principal, and Fullerton and Mosely as sureties), he (Fullerton) [151] acquired a right of action against MeGeorge for the entire amount, and had also a right to demand of Mosely that he pay his proportion as surety. The attitude of both, MeGeorge and Mosely, was that of separate debtors to Fullerton; and while payment by one would partially or wholly satisfy the claim against the other,' I fail to see how mere security given by either would destroy the right of their creditor to call on the other for actual payment. The debt owing by Mosely to Fullerton might, as already said, be satisfied by MeGeorge fully reimbursing Fullerton, by paying the full sum of the said $259.25, but a promise by MeGeorge to pay, coupled with a mortgage to secure that promise, will not amount to a satisfaction of Fullerton’s claim on Mosely. We deem the foregoing a complete answer to the more material points in plaintiff’s brief. Many criticisms are made as to the court’s instructions. It is unnecessary to discuss these, since the undisputed facts warrant the judgment rendered. The defendants were not required to allege or prove the insolvency of MeGeorge, the principal. 1 Brandt, Suretyship and Guaranty [2 Ed.], sec. 290. The defense, too, was unquestionably proper matter of set-off. Sec. 8160, R. S. 1889. The judgment was clearly for the right party and will be affirmed. All concur.