Becker v. Farwell

Bailey, J. It is objected that the enforcement of contribution is properly a matter of legal cognizance, and that a court of equity, therefore, has no jurisdiction. The right to contribution does not arise out of any contract or agreement between the parties, but from the principle of equity, that where two or more persons are subject to a common burden, it shall be borne by them according to their respective interests. Glolsen v. Brand, 75 Ill. 148; Griffeth v. Robinson, 14 Ill. App. 377; Drummond v. Yager, 10 Ill. App. 380. This principle is so universally acknowledged that persons acting under circumstances to which it applies, are said to act under the head of contract implied, from the universality of the principle, and upon this ground stands the jurisdiction of suits for contribution assumed by courts of law. Craythorne v. Swinburne, 14 Ves. Jr. 160. But while jurisdiction, at law is sustained, courts of equity have always exercised a concurrent jurisdiction, founded upon the fact that the legal remedy is not, under all the circumstances, full, adequate and complete. 1 Pomeroy’s Eq. Juris. See. 139. As said by Mr. Story, “ in most cases of this sort there is no remedy at law, from the extreme uncertainty of ascertaining the relative proportion which different persons, having interests of a different nature, quantity and duration in the subject-matter, ought to pay. And where there is a remedy, it is inconvenient and imperfect, because it involves a multiplicity of suits, and opens the whole matter for contestation anew in every successive litigation.” 1 Story’s Eq. Juris., Sec, 483. And the same learned author further says: “ The remedial justice of courts of equity in all cases of apportionment and contribution is so complete and so flexible in its adaptation to all the particular circumstances and equities, that it has, in a great measure, superseded all efforts to obtain redress in any other tribunal.” 1 Story’s Eq. Juris., See. 505. Assuming, then, that the court of chancery had jurisdiction, the question is whether, upon the facts disclosed upon the pleadings and proofs, the complainants are entitled to conir'bution. An obstacle, apparently insurmountable, arises in limine from the fact that the complainants have not ¡oaid and satisfied the judgments in respect to which they are seeking to obtain contribution from the defendants. The transaction, in form at least, is a purchase of the judgments and their assignment to Parkhurst, for the avowed purpose of keeping them alive and in force. Before the complainants can properly demand contribution from their co-defendants, they must pay and satisfy the judgments, and the expenditure of money in purchasing them and obtaining an assignment of them to a third person, in such a way as to preserve their vitality as judgments, is not a payment, and lays no foundation for a claim for contribution. But even if we were able to treat the purchase of the judgments 'and their assignment to Parkhurst, the complainant’s attorney, as equivalent to a payment, we are still of the opinion that no case for a contribution is shown. There is no evidence of an express or implied contract on the part of the defendants to contribute. The stipulation by which it was agreed that the case in Jones County should be tried, and that the case in Linn County should abide the event of such trial, contained no provision which can, by any possibility, be construed into such a contract. Nor is one to be implied from the fact that the defendants united with the complainants in defending the suits, and employed the same attorneys and, in fact, contributed to the payment of attorneys’ fees and other expenses and disbursements attending the litigation. None of these acts involved, either expressly or by implication, an undertaking to join the complainants in paying off the judgments, if any, which might be recovered against them. We have also carefully considered the correspondence between the defendants and their attorneys during the progress of the litigation, which was produced at the hearing and offered in evidence, but failed to find in it any proof of an agreement to contribute in any manner to the payment of said judgments. It then remains to be determined whether the case is one involving the application of the general principle above referred to, which compels persons subject to a common burden to bear it according to their respective interests. It is a general rule, subject, it is true, to some exceptions, that the law will not compel contribution among tort-feasors. A leading case in which this principle was laid down is Merriweather v. Nixon, 8 Durn. & East, 186, where it was held that if a plaintiff recovers in tort against two defendants, and levies the whole damage on one, that one can not recover a moiety against the other for his contribution. This case was cited and approved in Nelson v. Cook, 17 Ill. 443, the court saying that the rule there laid down has been and still is recognized as unquestionable law. See also, Nichols v. Nowling, 82 Ind. 488; Minnis v. Johnson, 1 Duval, 171; Peck v. Ellis, 2 Johns. Ch. 131; Acheson v. Miller, 18 Ohio, 203; Rhea v. White, 3 Head, 120; Anderson v. Saylors, 3 Head, 551; Baird v. Midvale SteelWorks, 12 Phila. 255; Herr v. Barber,2 Mackey, 545. The foregoing rule does not seem to be questioned, but an attempt is made to bring the present case within the exception which restricts the operation of the rule to cases where the tort-feasor seeking contribution knew, or must be presumed to have known, that his act was unlawful. The principle here involved is fairly illustrated by the case of Jacobs v. Pollard, 10 Cush. 278, though that case was not strictly a case of contribution. There A, in good faith, took up B’s cattle damage feasa/nt, and C, a field-driver, at A’s request, sold them at auction and received the money. The proceedings were irregular, and A and C were, in fact, joint trespassers. A judgment in trespass having been obtained against them by the owner of the cattle, A was compelled to pay it. A thereupon brought suit against C for the money received by him for the cattle and was permitted to recover.- The court, after recognizing the policy of the law which discountenances all actions in which a party seeks to enforce a demand originating in a wilful breach or violation on his part of the legal rights of others, lays down the rule as follows: “ It is only when a person knows, or must be presumed to know, that his act was unlawful, that the law will refuse to aid him in seeking an indemnity or contribution. It is the unlawful intention to violate another’s rights, or a wilful ignorance and disregard of those rights, which deprives a party of his legal remedy in such cases. It has, therefore, been held, that the rule of law, that wrongdoers can not have redress or contribution against each other, is confined to those cases where the person claiming redress or contribution, knew, or must be presumed to have known, that the act for which he has been mulcted in damages, was unlawful.” In Acheson v. Miller, 2 Ohio St. 203, a judgment having been recovered against one Lewis on a draft for §>5,000, and judgment also having been recovered against six indorsers on said draft, four of the indorsers indemnified the Sheriff and directed him to levy on a stock of merchandise then recently the property and then in the possession of Lewis, but which at about that time had been assigned to one Gilbert. Gilbert brought suit against the Sheriff and the four indorsers and recovered judgment for the value of the goods. In a suit brought by one of the four indorsers against another indorser who had nothing to do with the levy for contribution, the court say: “The rule that no contribution lies between trespassers, we apprehend, is not one of universal application. "We suppose it only applies to cases where the persons have engaged together in doing wantonly or knowingly a wrong. The case may happen that persons may join in performing an act which to them appears to be right and lawful, but which may turn out to be an injury to the rights of some third party, who may have a right to an action of tort against them. In such case, if one of the parties who have done the act has been compelled to pay the amount of the damage, is it not reasonable that those who were engaged with him in doing the injury should pay their portion?” In Adamson v. Jarvis, 4 Bing. 66, substantially the same question arose, and Best, C. J., discussing the case of Merryweather v. Mixon, supra, says: “ From the concluding part of Lord Kenyon’s judgment in that case, and from reason, justice and sound policy, the rule that wrongdoers can not have redress or contribution against each other, is confined to cases where the person seeking redress must be presumed to have known that he was doing wrong.” See, also, Betts v. Gibbons, 2 Adol. & Ellis, 57; Pearson v. Skelton, 1 Mees. & Wels. 504; Wooley v. Batte, 2 Car. & Payne, 417; Coventry v. Barton, 17 Johns. 142; Bailey v. Bussing, 28 Conn. 455. The question, then, is whether the present case is one in which the complainants, at the time they caused their attachment writs to be levied upon the stocks of merchandise in question, knew, or must be presumed to have known, that in so doing they were committing' a tortious act. The attachment writs were sued out against Olquist Brothers, but the complainants caused them to be executed by seizing goods not in the possession of the defendants to the writs, but in the possession of third parties who were strangers to the writs, and who were the ostensible and apparent owners, and, as the subsequent litigátion conclusively showed, the actual owners of said goods. Where a writ, issued against one party, is executed by seizing goods in possession of another party who claims to be the owner, such seizure is presumptively tortious, and the party procuring such seizure must be presumed to have acted with notice that he was committing a wrong. It is not the case of the commission of an act apparently right and lawful, but which happens to turn out to be an injury to some third person, but an act which, upon its face, is an unlawful invasion of the rights of such third person. Undoubtedly, if the complainants had succeeded in establishing the invalidity of the sale of goods by the defendants in their attachment to the parties from whose possession the goods were taken, such fact would have justified their seizure. But when they ventured to levy their writ upon property in the possession of third persons, they undertook to establish a justification of such levy at their peril, and having failed to do so they must be treated as wilful tort-feasors. We are of the opinion, then, that the facts shown by the record bring the complainants within the general rule which forbids contribution among wrongdoers, and that the decree awarding such contribution is unwarranted by the evidence. The decree will therefore be reversed and the cause remanded, with instructions-to the court below to dismiss the bill, at the complainant’s costs, for want of equity Decree reversed.