Schmidt v. Coulter

By the Court ElaNdeau, J. — There is no case or bill of exceptions bringing up the testimony. We are therefore confined to the report of the referee in making our review. We must presume that sufficient evidence was introduced without objection to sustain all his findings of fact, regardless of the allegations or want of allegations in the pleadings. The action was for rent of land. The defence was a claim against the Plaintiff tor contribution as co-surety with the Defendant on an appeal bond, in a matter entirely distinct from the Plaintiff’s cause of action, the Defendant having-paid the whole amount. This defence was answered by showing that the Defendant had sued the principal debtor, and garnisheed one Jackson, who held property of the principal to an amount sufficient to satisfy the debt, and had obtained a [495] judgment for the full amount against botb principal and garnishee, but by Ms neglect had not prosecuted the suit on appeal until Jackson had become insolvent and the security lost. Whether such a claim is the proper subject of setoff or counter claim, is quite doubtful. Comp. Stats., 481, secs. 23, 24 ; Ib. 541, secs. 70, 71, 73 ; Gates vs. Smith, 2 M. R. 30. The ground of relief in such cases does not stand upon any notion of mutual’contract between the sureties to indemnify each other in proportion, but it arises from principles of equity independent of contract. 1 Story Eq. Jur., sec. 493, and note 1, on p. 546. See also Maddocks' Chancery, Vol. 1, p. 235. It is very doubtful also whether a surety can claim contribution against his co-surety, without showing the insolvency of the principal when the suit is against the co-surety alone, the principal not being made a party. 1 Maddocks’ Chancery, 236; Adams’ Equity, p. 609, and note. But in this case the whole matter seems to have been litigated, and the decision made upon the question whether the Defendant, by failing to follow up his judgment against the garnishee, Jackson, until he became insolvent, had lost his claim for contribution against the Plaintiff. It is not found by the referee, that the judgment recovered by the Defendant against the principal debtor has been in any manner impaired. Nothing is said one way or the other about the solvency or insolvency of the principal, and nothing appears but that the judgment may be enforced against him at any time the Defendant is disposed to move in it; but the referee finds that the delay and subsequent insolvency of the garnishee is such a loss of a valuable security which’was held for the benefit of both the sureties, as to defeat the claim for contribution. This reason is well enough as far as it goes; because, when one of two or more co-sureties obtains in any manner a security for the debt, he holds it for, the benefit of all the other sureties, and must do no act, nor voluntarily omit to do any act, by which such security is depreciated or lost, but must faithfully appropriate it to the payment of the debt, or he will be chargeable with the amount of the security by his co-sureties, in an adjustment of their proportion of the debt. Willis vs. [496] Davis, 3 Min.R. 17, 28. In this case tbe Defendant, after haring paid the surety debt, recovered a judgment, against the principal and a.garnishee. He has lost the judgment against the garnishee, but not against the principal debtor ; and'nothing appears but that he may collect it at any moment. Now, can he maintain an action for contribution against his co-surety under such circumstances % I think not. As the case appears in the record furnished this Court, the referee decided correctly in not allowing the claim for contribution, but the decision should not rest solely upon the discharge of the garnishee through the negligence of the Defendant. There are better answers apparent in the record. Judgment affirmed.