Chipman v. Morill & Webster
Before: Field, Norton
Synopsis
Courts of Equity and Courts of Law have concurrent jurisdiction in enforcing contribution between cosureties. The jurisdiction of Courts of Equity is based upon the principle that equality of burthen is equity; that of Courts of Law is based upon the implied promise of each surety to contribute his share, if necessary, to make up the common loss.
The doctrine of contribution applies equally between those who are original cocontractors—that is, those who are jointly bound on their own account, (not being copartners) as it does between those who are cosureties—that is, jointly bound to answer for the debt or default of another.
Where several parties, owing distinct portions of the same debt, execute a, joint note for the same, each is, as to his own proportion, principal, and as to the proportion of each of the other makers, a cosurety.
Thus, where C., M. and W. purchased property together, C. taking one undivided half, and M. and W. each taking one undivided fourth, and for the purchase money executed their joint note: Held, that C. was, as to his half of the debt, a principal and a cosurety with M. for the fourth due from W., and with W. for the fourth due from M.
A surety paying a debt, for which several persons are liable in distinct proportions as principals, cannot maintain a joint action against the principals for the amount thus paid, but his remedy is by a several action against each upon the implied assumpsit of each to reimburse what was thus paid for him.
C., in the case above stated, having paid the whole of a judgment, recovered upon the note: Held, that it is not a case for contribution between parties who have sustained a common loss upon a common liability, but that M. and W. are each severally liable upon an implied contract to repay C. one-fourth of the judgment.
The language “ an action upon any contract, obligation or liability founded upon an instrument of writing,” in the seventeenth section of the Statute of Limitations, refers to contracts, obligations and liabilities resting in or growing out of written instruments, not remotely or ultimately, but immediately—that is, to such contracts, obligations or liabilities as arise from instruments of writing executed by the parties who are sought to be charged in favor of those who seek to enforce the contracts, obligations or liabilities.
Thus, where two persons executed a note, one as principal and the other as surety, and a judgment obtained upon the note is paid by the surety: Held, that the obligation of the principal to repay the surety is not “ founded upon a written instrument,” within the meaning of the statute, and that more than two years having elapsed after the payment before suit brought, the demand was barred.
Field, C. J. delivered the opinion of the Court—Norton, J. concurring. The property of the plaintiff was sold under execution to satisfy a judgment recovered against the plaintiff and the defendants, and this action is brought to enforce payment from the defendants of their proportionate share. The questions for determination arise upon the pleadings. The papers read on the motion for new trial we cannot look into, as there is no appeal from the order denying the motion. The complaint sets forth that in December, 1853, the plaintiff and the defendants purchased certain real estate situated in Alameda county, and gave to the vendor in part payment for the same them joint promissory note for $11,666, secured by a mortgage upon the property; that the plaintiff by the purchase became the owner of one undivided half of the premises, and each of the defendants became the owner of one undivided fourth; that the note was not paid, and that suit was commenced for the foreclosure of the mortgage, in which judgment was recovered against the plaintiff and the defendants for $11,666, and a decree entered directing the sale of the premises for the satisfaction of the judgment; that under the decree the mortgaged premises were sold, and after the application of the proceeds to the payment of the amount due upon the judgment, there remained a deficiency of $8,040; that for this deficiency, and the per centage, interest and costs, an execution was issued on the first of-July, 1856, and under it, on the thirtieth of the same month, property of the plaintiff was sold for the sum of $12,000, and the amount applied to the satisfaction of the deficiency and interest, per centage and costs; that [134]the deficiency was due from the plaintiff and defendants in the same proportions between themselves, as they were the purchasers and owners of the premises; that is, one-half from the plaintiff and one-fourth from each of the defendants; but as the whole amount was paid by the plaintiff, the defendants are bound to make contribution to him in proportion to their interests. Then follows a prayer for judgment that each defendant be required to pay the plaintiff the sum of |3,000, with interest from July 30th, 1856, and for such other and further relief as to equity shall seem meet.
To this complaint the defendant, Webster, demurred on various grounds, and among others, on the ground that there was a misjoinder of parties, because the cause of action was several against each of the defendants; and on the ground that it appeared that more than two years had elapsed from the time the cause of action accrued before the suit was commenced. The Court sustained the demurrer, and the plaintiff declining to amend his complaint, final judgment was entered thereon.
More from California Supreme Court
- People v. Wende (1979)
- People v. Watson (1956)
- People v. Superior Court (Romero) (1996)
- People v. Kelly (2006)
- Auto Equity Sales, Inc. v. Superior Court (1962)
- Aguilar v. Atlantic Richfield Co. (2001)
- People v. Lewis (2021)
- In Re Estrada (1965)
- Denham v. Superior Court (1970)
- People v. Marsden (1970)