p. 63of Smith, as guardian, to perform his duties according to the condition of the bond; and that after such recovery, to wit, &e. the plaintiff paid the amount thereof to Fuller, with costs, as he was bound and obliged to do, of all which the defendants had notice. Breach: that the defendants, as executors of Gould, have not paid the plaintiff the moiety of the moneys so by him paid to Fuller, but have hitherto refused &c.
The fourth count was substantially like the third, except that the promise to pay to. the plaintiff the moiety of the moneys which he should be obliged to pay on account of the bond, which in the third count is averred to have been made by Gould in his lifetime, is in this count alleged to have been made by the defendants as his executors, after his death; the consideration of which promise is stated to be the liability of Gould to reimburse the plaintiff the moiety of whatever he might have to pay in consequence of executing the bond.
The defendants pleaded to both counts, 1st. That the condition of the bond was not broken by the guardian during the lifetime of Gould, their testator, but was faithfully kept by Smith until after the death of Gould ; 2d. That the plaintiff paid the amount recovered by Fuller voluntarily and of his own accord, and without being obliged by execution or otherwise to pay the same; and so they say that he paid the same of his own wrong, &c. The plaintiff demurred to both pleas, and the defendants joined in demurrer.
J. A. Spencer, for the plaintiff,
stated the question to be whether the personal representatives of a co-surety in a joint bond, executed for a guardian, can be compelled to contribute to the other surety who has been obliged to pay money in consequence of a breach on the part of the guardian, occurring after the death of their testator, the condition having been faithfully performed during his lifetime. He maintained that there was an implied promise to contribute, by each of the sureties to the other, arising out of the transaction at the time of the execution of the bond; in support of which he referred to the following authorities: (Marshall v. De Groot, 1 Caines’ Cas. in Err. 122;
p. 64Bachelder v. Fisk, 17 Mass. 464 ; Hutton v. Eyre, 6 Taunt. 289; Birkley v. Presgrave, 1 East, 220; 1 Binney, 123; 1 Marsh. 603 ; 3 N. Hamp. 270.) And to shew that it was not essential that an execution should have issued against the plaintiff he cited Butler v. Wright, ( 2 Wend. 369 .)N. Hill, Jr., for the defendants.
On the death of the defendants’ testator he was discharged from the bond. Where all the obligois in the bond are principals, the case is different. There, where one of them dies and the survivors are afterwards obliged to pay, the representatives - of the deceased must, it is admitted, contribute. The liability of sureties is different. As a surety is bound only by the legal obligation which he incurs, when that ceases he is discharged. He is never made liable in equity; and therefore when he dies and the obligation attaches against the other joint obligors who hare survived, he is discharged at law and his representatives cannot be pursued in equity; and no one can be compelled to contribute who could not have been made liable to the original creditor. Here the cause of action, if any, accrued after the death of Gould; and if the plaintiff has any remedy, it is simply for money paid, and the plaintiff cat sustain his action upon a common count. In cases of contribution it is not necessary to declare specially. Now for whose use was this money paid by the plaintiff? Not for the use of the testator, for he was dead. It was not in any sense for the use of his representatives. An action for contribution is not based upon any contract express or implied. It is a mere creature of equity. (Deering v. The Earl of Winchelsea, 2 Bos. & Pull. 270; 1 Cox’s Eq. R. 318; 3 Bligh’s R. 290; 1 Story’s Eq. 3d ed., 503, note 1.)
The case of Walters v. Riley, (1 Harr. & Gill, 305,) is parallel with that now before the court. W. and R were joint sureties in an administrator’s bond. W. died, and then judgment was obtained against the principal and the surviving surety R. R. afterwards died, and his representatives sued the representatives of W. It was held that the plaintiff could not recover;
p. 66his death his representatives were discharged of any claim by Fuller, the plaintiff had no right of action against the latter for any portion of the amount of the judgment recovered against, and paid by him upon the bond, as survivor of Gould.
From the examination which I have made I am entirely satisfied that the principle assumed is not sound, and that it cannot be sustained. I think that the law implies a contract between co-sureties to contribute, ratably, towards discharging any liability which they may incur in behalf of their principal, such contract originating at the time they execute the principal obligation ; that there results, by implication of law, a promise on the part of the principal to indemnify his sureties; and also in like manner a mutual promise between the sureties, to contribute proportionally towards indemnifying each other against such liability; and that such implication does not take its origin from the subsequent payment of the money. The right of action for contribution arises, it is true, when the surety claiming such contribution pays the money, and not before. Notwithstanding a. breach, the debt may be paid by the principal, or relinquished or compromised,, and the surety never compelled to pay; - and in that case he never has a cause of action, either as against his principal or co-surety. The right of action as between the sureties grows out of the original implied agreement, that if one shall be compelled to pay the whole or a disproportionate part of the debt, the other will pay such sum as will make the common burden equal. In case of the death of either, this obligation devolves upon his legal representatives. In this respect it is like any other contract made by one in his lifetime, to pay money at a future time, absolutely or contingently, who dies before the occurrence of any breach of the contract. (Tom v. Goodrich, 2 John. R. 213; Story on Contr. §§ 558, 584; Chit . on Contracts, 597; Toussaint v. Martinant, 2 Tenn. R. 104; Powell v. Smith, 8 John. 249 ; Cowell v. Edwards, 2 Bos. & Pull. 268; Deering v. The Earl of Winchelsea, id. 270 ; Wood v. Leland, 1 Metc. R. 387; Bachelder v. Fisk, 17 Mass. R. 464 .)
The case of Bachelder v. Fisk is directly in point; the facts
p. 67alleged are nearly identical with those in the case under consideration. The declaration, which was in assumpsit, contained a special count, in which it was alleged that Ebenezer Fisk, on the 4th of October, 1813, was duly appointed guardian for one Elbridge Fisk a minor; that the plaintiff and defendant’s testator became bound as sureties for the guardian to the judge of probate in a bond for $10,000, with a condition substantially lilts the condition of the bond in this case. The count then averred that the plaintiff and the testator, so being sureties, it was mutually agreed by and between them (the promise of one being the consideration of the promise of the other,) that the plaintiff would save harmless and indemnify the testator for one-half part of all damages and charges that might or should happen to the tes tator by reason of his being so bound, and that he, the testator, would in like manner save harmless and indemnify the plaintiff. It then averred a breach of the condition of the bond by the guardian, the coming of age of the ward, his” requirement of account and payment of the moneys of the ward in his hands; that the guardian had a large sum of money, to wit &c., that he neglected to pay, and that the plaintiff by reason thereof and to prevent his goods from being taken, paid a large sum, to wit &e., and that a certain sum, to wit &c., was the one-half part of the damages the plaintiff had sustained, concluding with the usual breach by testator in his lifetime and by executors since his death. The facts were as follows : Ebenezer Fisk, at the time mentioned, was appointed guardian as averred in the declaration—the plaintiff and defendant’s testator executed a bond as sureties for the guardian to the judge of probate, in the penalty of $10,000, conditioned for the faithful discharge of the trust by the guardian. The defendant’s testator died April 9th, 1815. In June, 1820, the minor came of age, and demanded of the guardian an account and payment of $4,197,71 which was due from the guardian, who was insolvent; and the plaintiff, on the 25th of August, 1820, paid to the ward the sum so due in discharge of the bond, without suit. The court held that a surety who had paid the debt of the principal, might have an action for contribution against his co-surety;
p. 68and that the common form of the action was
indebitatus assump
sit for money paid by the plaintiff for the use of the defendant; that the right of action is founded upon an implied promise by one surety to contribute towards indemnifying the other. It was said that there was in that case, (and the same remark is applicablé to this case,) a technical objection to the usual form of declaring, in
indebitatus assumpsit, inasmuch as the plaintiff could not allege that he paid the money for the use of his co-surety, after the death of the latter; and that if he alleged that he paid it for the use of the defendants,as executors, it would be to charge the defendants in their own right, which could not be- done. That objection, it was said, was answered by the general principle, which is universally recognized and which was applied in
Birkley v.
Presgrave, (1
East. 220,) that when the law confers a right it will also give a remedy. That case, as well as this, furnishes an authority as to the form of pleading. The declaration there contained the usual money counts, with a special count setting forth the facts on which the implied promise of the defendant was founded, exhibiting the grounds and nature of the action. It was held also, that in actions of assumpsit the plaintiff, whenever he finds it necessary or useful, might set out his whole case; and if that showed a valid legal promise by the defendant, whether express or implied, it was sufficient.
It follows that the first plea to the third and fourth counts furnishes no sufficient answer. The defence there pleaded is, that the condition of the bond executed by the plaintiff and the defendants’ testator as co-sureties for Smith the guardian, was not broken by the guardian in the lifetime of the testator, and that the plaintiff had not become liable or been obliged to pay any sum of money by reason of any default of the guardian arising out of or upon the condition of said bond or writing obligatory, during the lifetime of Gould. The facts thus set up are wholly immaterial, and cannot be a ground of defence.
The other plea which is demurred to, sets up as a defence to those counts, that the plaintiff voluntarily, and without being compelled by execution, paid the money, and so paid it in his
p. 69own wrong; and that the same, if it had not heen so paid, might and would have been collected against Smith. It is not necessary for the plaintiff, in order to sustain his action, to show that he was compelled to pay as a surety upon the bond by execution. When the contract has been broken, the surety may pay the money without suit and recover the amount of his principal,
(Mauri v.
Heffernan, 13
John. R. 58,) and by analogy, a surety may recover against his co-surety his due proportion upon the like ground. The pleas therefore are clearly bad—and judgment on the demurrer should be rendered in favor of the plaintiff, unless both of the counts to which the pleas demurred to were pleaded, are also bad for want of substance. (1
Chitt. Pl. 647, 643;
Miller v. Maxwell, 16 Wend. 9 .)
The third count, although unskilfully and inartificially drawn, is, I think, good in substance. It does not, as it should have done, contain a distinct averment of mutual promises; but the testator’s undertaking and the consideration of it are set forth with sufficient certainty.
The fourth count I think is bad in substance as well as in form. The design of the pleader seems to have been, to charge the defendants upon promises by them in the capacity of executors; which would "have been well enough on a proper occasion, if stated in proper form. (Carter v. Phelps, 8 John. 440 ; Whitaker v. Whitaker, 6 id. 112.) But I think the attempt here to do so has utterly failed. No promise by the testator to his co-surety is stated, but it is alleged that the defendants, as executors, in consideration of the liability of their testator to pay to the plaintiff a moiety of what he might pay, undertook and promised to pay the plaintiff such moiety, &c. The liability of the testator is stated to be a consequence of the joint bond and of the law in such case made and provided. The judgment recovered by Fuller against the plaintiff, after the death of the defendants’ testator, is then stated, and the payment thereof by the plaintiff, with the common breach that the defendants, as executors, had not paid the plaintiff. One radical defect is in stating the testator’s liability to have accrued on account of the joint bond and the law applicable to the case, whereas that liability arose out of the mutual
p. 70promises between the sureties implied by kw from their relation as co-sureties. The consideration of the defendants’ promise is mistakenly alleged to be the liability of their testator and the fact that the bond remained unpaid; and their promise is stated to have been made before any recovery by Fuller, and before the plaintiff had paid any thing. No cause of action had accrued against them, and no consideration existed for a promise by them until the recovery against the plaintiff and the payment thereof by him. The count cannot be sustained. But the third count being good, the plaintiff is entitled to judgment on the demurrers.
Judgment for plaintiff.