Chipman v. Morill & Webster

Citations

• 20 Cal. 130

Syllabus

<p>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.</p> <p>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.</p> <p>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.</p> <p>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.</p> <p>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.</p> <p>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.</p> <p>The language “ an action upon any contract, obligation or liability founded upon an instrument of writing,” in the seventeenth section of the St