Atwater v. Farthing, 118 N.C. 388 (1896)

Feb. 1896 · Supreme Court of North Carolina

118 N.C. 388

E. W. ATWATER v. G. C. FARTHING.

A ceommodation Endorsers— Oo-Sureties— Contribution.

Where A. endorsed a note for the maker and subsequently, but before it was discounted, F. endorsed it, and A. paid the note ; Held, that E. was a co-surety and the doctrine of contribution applies for A’s benefit.

Civil aotior, heard before Starbuck, J., at October Term, 1895, of DurhaM Superior Court, on,appeal from a judgment rendered by a justice of the peace. The facts appear in the opinion of Associate Justice Furohes. There was judgment for the plaintiff and defendant appealed.

Messrs. Shepherd, Manning c& Foushee, for plaintiff.

Messrs. Fuller, Winston da Fuller, for defendant (appellant).

Furches, J.:

R. H. Atwater, wishing to borrow money, drew a note for $250, payable to J. F. Slaughter, Jr., cashier, and the plaintiff E. W. Atwater and the defendant Gr. C. Farthing endorsed the same for the accommodation of the principal R. H. Atwater, and he procured it to be discounted at the National Bank of Durham. The plaintiff endorsed this note some days before the defendant did. But both endorsed it before it was discounted. The plaintiff afterwards paid the balance of this note, amounting to about $185. And the principal, R. IT. Atwater, being insolvent and having left the State, the plaintiff demanded of the defendant contribution of one-half of the amount he had paid, which was refused, and he brings this action to recover the same.

This caséis governed by Daniel v. McRae, 2 Hawks., 590; and Dawson v. Pettway, 4 Dev. & B., 396. There are a number of other cases to tbe same effect; but these aré the leading cases, and we do not care to encumber this opinion with other authorities. It was admitted by the learned counsel, who argued for the defendant, that Daniel v. McRae, supra, was against him. But he contended that this opinion was not supported by principle, and was in conflict with the adjudged cases of nearly every state of the Union, and that it had been severely criticised by this Court. But whether it was put on sound business principles or not, (and we do not say that it was not,) and whether it has been criticised or not, (and we must admit that it has been,) it has stood for itself since 1823. And although it was criticised by Gaston, J., delivering the opinion of the Court in Dawson v. Pettway, supra, in 1839, lie then said it had been too long the recognized law of the State to be reversed, even admitting that the reasoning upon which it was founded was not sound. And if it had been the recognized law in 1839 for too great length of time to be changed, how much greater is that reason now, after a period of more than fifty years since that opinion was rendered ? According to this opinion the defendants were co-sureties and subject to the doctrine of contribution. "We can add nothing to the argument contained in these cases, and we do not propose to reoccupy this field of discussion, exhausted by Judge HeNDERSon and Judge GastoN more than fifty years ago. There is no error and the judgment is affirmed.

Affirmed.