Young v. Shunk

Gilfillan, C. J. Martin Paulson entered into a contract with the Davis Sewing-Machine Company. The defendants, by an instrument [505] under seal, guarantied, to the amount of $2,000, the performance by Paulson of said contract. Afterwards, plaintiff, by a separate instrument under seal, guarantied, to the amount of $1,000, the performance by Paulson of the same contract. The plaintiff, having been compelled to pay the $1,000 by reason of Paulson’s failure to fulfil his contract, brings this action to enforce contribution from defendants. They insist that he and they were not co-sureties. Persons are co-sureties, so as to give the right of contribution, when they are bound for the performance by the same principal of the same duty; and whether they become so at the.same time or at different times, by one or by several instruments, and even that they are bound in different amounts, or that, each is ignorant that the others are sureties, does not affect the relation nor the right. The right does not seem to rest upon contract, (for a contract cannot be assumed between persons who may each be ignorant of the other’s existence,) but upon this natural principle of equity, that where the same burden is assumed equally by several, and one of them is compelled to discharge it, the others ought to contribute each his share, so as to preserve equality. As the obligation to contribute arises, not from contract between the co-sureties, but from the existence of that relation, — that is, of sureties for the same principal and the same duty, — it may be doubted that the intention of the surety in respect to contribution, at the time of becoming such, unless expressed in the way of a contract between him and the other sureties, will affect the right. However that may be, the evidence in this case does not make it appear that, at the time of becoming surety, the plaintiff intended to exclude the right or obligation of contribution. He made no objection to assuming the relation of co-surety, but objected only to executing the same instrument with the others. His reason for preferring to become surety by a different instrument was not given. It is going too far to assume that it was because he did not intend to contribute if one of the others paid, nor to call on them for contribution if he paid. It was error to direct a verdict for defendants. As the evidence stood, the verdict ought to have been for plaintiff. Order reversed, and new trial ordered.