Boutin v. Etsell

EaedeeN, J. A number of objections to the validity of the judgment are raised by defendant, which will be considered as presented: 1. He first raises the question whether this is an action at law or in equity. The complaint states a plain cause of action at law. It was so treated by the parties on the trial, and will so be considered here. 2. Nest it is claimed that there were eleven sureties, and the facts show that plaintiffs have not paid more than their proportionate share of the original judgment. This contention ignores the fact of the compromise. The ultimate liability of all the sureties to the county was fixed at $2,000, which was paid by the four plaintiffs. The compromise was. one which resulted to the benefit of all the sureties, and, for the purposes of this action, must be considered as the basis of individual liability. The liability of a surety to contribute to one who has paid more than his share of the common debt is one that is now recognized and enforced both at law and in equity. It rests upon equitable grounds, and appeals to the conscience of the judge and the chancellor alike. The time was that the paying surety in an action could only recover from his co-surety an aliquot part of the whole debt; regard being had to the number of sureties, and without regard to the insolvency or nonresidence of any of them. The considerations before mentioned induced a modification of this rule, so that it may be said to be established law in this state, as well as others, that, when one surety has paid the whole debt, he may compel contribution from such of his co-sureties as are solvent and within the state. Smith v. [279] Mason, 44 Neb. 610; Stallworth v. Preslar, 34 Ala. 505; Werborn’s Adm'r v. Kahn, 93 Ala. 201; Faurot v. Gates, 86 Wis. 569; Hardell v. Carroll, 90 Wis. 350. 3. Another objection is that no recovery should have been allowed for attorney’s fees paid in defense of the suit and securing a compromise. There is no claim that such fees are unreasonable, or that they were imprudently incurred, or that they were not incurred for the common benefit. On the contrary, it sufficiently appears that the plaintiffs acted as prudent men would have acted under the circumstances, and that such action resulted in a substantial benefit to all of the sureties. The following authorities justify the allowance of such fees and expenses: Backus v. Coyne, 45 Mich. 584; Marsh v. Harrington, 18 Vt. 150; Fletcher v. Jackson, 23 Vt. 581; Gross v. Davis, 87 Tenn. 226; 4 Am. & Eng. Ency. of Law, 3, and note; 1 Brandt, Suretyship & G. § 283. We are referred to the case of Shepard v. Pebbles, 38 Wis. 374, as sustaining the defendant’s contention. It was a case for contribution, and the writer of the opinion makes use of the following language: “ But we do not understand that the right to contribution extended to the costs incurred by the plaintiff, or paid by him, in the action brought in the circuit court. It does not appear that the defendant authorized the payment of those costs, or agreed in any way to be liable for his share of them,, and there is no special count in the complaint which would warrant any evidence to show that he was responsible for them.” There are, no doubt, cases when the expense incurred by a surety should not be allowed, and possibly the situation was such in the case referred to as to justify that conclusion. An inspection of the case and briefs on file, and of the facts stated in the opinion, fails to disclose the exact ground of the decision, any further than is disclosed by the language used. If the decision is made to rest upon the fact that no foundation for the recovery was laid in the complaint, there [280] is seeming justification for it. Otherwise, it would seem to stand upon dubious ground. Since the decision in Faurot v. Gates, supra, there is no good reason for saying that, in actions of this kind, reasonable attorney’s fees, prudently incurred for the common benefit of the sureties, may not be recovered. 4. Another objectidn, somewhat feebly suggested, is that the evidence does not sustain the jury’s finding as to the insolvency of the estates of several of the deceased sureties. The evidence is not referred to or discussed by counsel. There is at least some evidence in the record to support the conclusion reached, and, counsel not deeming the point of sufficient importance to point out its weakness, we shall hold it sufficient. 5. The last objection urged is that there was no evidence that Alonzo Knight, the principal on the bond, was insolvent. A complete answer to this position is that, this being an action at law, no such evidence or finding was necessary. Thus, it is said in 1 Brandt, Suretyship & G-. § 290: “ In an action at law by a surety against his co-surety for contribution, the weight of authority seems to be that the insolvency of the principal need not be averred or proved.” See, also, to the same effect, Smith v. Mason, 44 Neb. 610; Goodall v. Wentworth, 20 Me. 322; Rankin, v. Collins, 50 Ind. 158; Sloo v. Pool, 15 Ill. 47. The fact that the plaintiffs took an assignment instead of a satisfaction of the judgment does not prejudice the defendant. They are not seeking to enforce the face of the judgment, but only such sum as they paid to settle the claim. Secs. 3021-3024, Stats. 1898, recognize the right of the sureties to keep the judgment alive, and we see no reason why it may not be done by assignment, if the parties so agree. See German Am. S. Bank v. Fritz, 68 Wis. 390. By the Court.— The judgment is affirmed.