Linn v. McClelland, 20 N.C. 458, 3 Dev. & Bat. 458 (1839)

Dec. 1839 · Supreme Court of North Carolina

20 N.C. 458, 3 Dev. & Bat. 458

JOHN LINN vs. JOHN McCLELLAND.

A previous suit for the same cause of action in which the plaintiff has been nonsuited, is both a notice and a demand of his claim.

It is not necessary, to enable one co-surety to have contribution from another, that the former should pay the debt under the compulsion of a suit.

It seems that a surety who has paid the debt of his principal, upon the default of the latter, may recover of his co-surety, though the principal was solvent when the surety paid the money; provided the principal subsequently became insolvent before the surety received payment, or had a reasonable time to prosecute a suit against him to judgment.— Such surety certainly may recover where the insolvency of the principal existed from the day the money was paid to that on which the suit was brought against the co-surety.

This was an action of Assumpsit, brought by the plaintiff, to recover one half of a certain sum of money which he alleged that he had paid as a co-security with the defendant, for one Samuel Jones. Upon the trial, at Davie, on the circuit, before his honor Judge Dick, it appeared that in November, 1832, Samuel Jones, as principal, and. the plaintiff and defendant, as his sureties, executed a note for $427, payable on the 6th of February, 1833, to William H. Horah, Cashier of the State Bank of North Carolina; that the note was not discharged at maturity; and in the spring of 1833, was placed in the hands of Richard H. Alexander, an attorney, for collection; and that the plaintiff paid off the note to Mr. Alexander without suit. It appeared further that the plaintiff brought an action of assumpsit against the defendant to recover one half of the amount so paid by him, and that after the suit had been put to issue, and pended for some time, the plaintiff suffered a nonsuit, and afterwards, within twelve months, brought this suit. The defendant contended that the plaintiff was not entitled to recover, 1st, because he had not been compelled to pay the note under a judgment and execution, but had paid it voluntarily and without a recovery had against him.

Dec. 1839

2ndly. Because he had not given the defendant notice that he had discharged the said debt, before this action was brought.

3rdly. Because Samuel Jones, the principal, was not insolvent at the time when the plaintiff paid off the note.

His Honor charged the jury, that before the plaintiff could recover, he must prove to their satisfaction that Samuel Jones, the principal, was insolvent at the time when the plaintiff discharged the note, and that he remained insolvent up to the time at which this action was commenced; and that the plaintiff had given notice to the defendant that he had paid the debt of their principal; and that if they were satisfied of these facts, it was not necessary for the plaintiff to shew, in order to entitle him to recover of the defendant, his co-surety, that he had paid the money upon a suit brought and recovery had against him; for that as soon as he ascertained that his principal was insolvent, he had a right to pay the debt without suit, and go against his co-surety for contribution. His Honor instructed the jury further, that the former suit brought by the plaintiff for the same cause of action, was sufficient notice to the defendant. There was a verdict and judgment for the plaintiff, and the defendant appealed.

D. F. Caldwell for the defendant.

No counsel appeared for the plaintiff in this Court.

Ruffin, Chief Justice.

The judgment ought not, we think, to be reversed for any of- the causes set forth in the exceptions.

A previous suit for the same cause of action is, undoubtedly, both a notice and a demand of the plaintiff’s claim.

Although the statute uses the term “ compelled,” yet in our opinion, it is not necessary, to enable one co-surety to have contribution from another, that the former should pay the debt under the compulsion of a judgment'and execution. The word is rendered appropriate by the known repugnance of a surety to pay the debt of his principal, if it can be avoided. Therefore he may be said to be compelled by his contract and the default of his principal. The Legislature could not have meant to require a litigation so needless; for it is to be, remembered that the insolvency of the principal is presupposed, and indeed, the objection does not even require that he should be sued, but only the surety.

When the principal makes default, the surety is not obliged to incur the expense of a suit, but may, of his own accord, do that to which he might be coerced by action; and if he cannot obtain indemnity from the principal by reason of his insolvency, he may justly and legally claim contribution from one who assumed jointly with him the responsibility of sure-tiship. ,

The defendant has no reason to complain of the instructions as to the period at which the insolvency must have arisen, and during which it must continue, in order' to give the action between the sureties. We indeed, are not aware of any authority or reason why the action will not lie, although the principal was solvent when the surety paid the money; provided he subsequently became insolvent before the surety received payment, or had a reasonable time to prosecute a suit against him to judgment. The object of the act was to do away the necessity of going into a Court of Equity, and therefore whenever the facts occur which constitute the merits of the case of that party who paid the money, the legal jurisdiction for his relief also arises. In this case, however, the insolvency existed from the day the surety paid the debt to that on which he brought suit; which must certainly be sufficient.

Per Curiam. Judgment affirmed.