Dodd v. Winn

Richardson, Judge, delivered the opinion of the court. The law is well settled that a valid agreement between the creditor and the principal debtor to extend the time of payment, or any improper interference by the creditor with the process of law after the commencement of a suit, by which the surety may be injured or subjected to greater risk, or be delayed in the right on payment of the debt to proceed against the principal, if made or done without the assent of the surety, will discharge him from his liability; (24 Mo. 333; 26 Mo. 243;) and the relation of principal and surety or of co-sureties is not extingushed by judgment. (Rice v. Morton, 19 Mo. 263.) A release of the principal will discharge the surety, but one surety may be discharged, without prejudice to an action against the others, to the extent that they would be liable in a suit for contribution between themselves. (Routon v. Lacy, 17 Mo. 399.) The creditor can not, by discharging one, increase the liability of the other; and he will not be allowed, by discharging one, to impose on the other a greater proportion of a common burden [504] than in equity be ought to bear. At law, if there are several sureties and one is insolvent and another pays the whole debt, he can only recover against the solvent sureties their pro rata part as if all of them were solvent; but the rule in equity is more just and reasonable, and the insolvent’s share is apportioned among those who are solvent. (1 Story Eq. § 498.) The eighth section of our statute concerning securities provides that one surety at the suit of another shall not be liable to pay more than his due proportion of the original demand, but what is his due proportion will vary according to the circumstances. Thus, if there are three sureties, and all of them are solvent, and one pays the debt, each of the others will be liable to him for one-third of the amount only; but if one of them is insolvent, the other will be liable for one-half. In this case it seems that Glascock was the principal debt- or, and that the other five parties to the note were sureties. Now if all the sureties were solvent, and the defendant paid the debt, he could only require M. J. Winn to contribute one-fifth part of it, and therefore could only ask to have one-fifth abated, and could only complain of the conduct of the plaintiff in releasing the levy of the execution to that extent. But if the other sureties are insolvent, M. J. Winn would be bound to contribute to the defendant one-half instead of one-fifth of the debt; in which case, if the plaintiff had released to M. J. Winn, he could only demand of the defendant the other moiety; and, on principle, the same result must follow if he could have made half the debt but for his improper interference with the execution. These questions can not bo determined from the meagre statement of facts in the special verdict. It does not appear whether the other sureties were solvent or not. The statute authorizes this court to remand a cause when the facts in a special verdict are insufficiently found; (2 R. C. 1855, p. 1301, § 35;) and the judgment then will be reversed and the cause remanded; Judge Napton concurring. Judge Scott not sitting.