McLin v. Harvey ( 1910 )

Powell, J.,

concurring. I think the case is controlled by the spirit, rather than by the express letter of § 3192 of the Civil Code of 1895, which provides that, “In cases of joint or joint and several contracts, a new promise by one of the contractors operates only as against himself.” Cognate sections of the code, as wéll as of the original statute from which this section is codified, indicate that reference is directly had only to the liability of the promisors to the promisee, and not to the liabilities existing between or among the promisors themselves. The liability of an obligor may be barred or extinguished as against any action which the promisee might bring, and yet not barred or extinguished as against an action brought by a co-obligor for contribution. Thus, say that A and B have jointly promised to pay C a sum of money on or before Jan. 1, 1904 (the promise not being under seal, and therefore being subject to the bar of the statute after 6 years), and in December, 1909, while the note is still alive and enforceable, A pays the debt to 'C. Now it would seem that if the payment had not been made, C could not have successfully sued B thereon, after Jan. 1, 1910. But A, having paid the debt, is not bound by any such limitation. His right of action against B for contribution could not be barred until after the statutory period applicable to his right of action for contribution had expired, from and after the time that right of action arose, namely, 4 years from the time the payment was made. Therefore, A could sue B for contribution at any time up to December, 1913, notwithstanding C’s right of action on the note, would have been barred by Jan. 1, 1910.

The cause of action in favor of a joint promisor for contribution arises from the fact of his having paid more than his ratable portion of the debt, and from the promise implied against his co-obligors that if he does so They will ratably reimburse him. The mutual promises of contribution thus implied as between or among the joint promisors, and the cause of action arising thereon when one of them has paid more than his share, are distinct from the promise contained in the note and the cause of action existing thereon in favor of the promisee.

If the debt becomes barred as to all the promisors and thereafter one of them revives it, and pays it, there appears to be no sound reason why he should call on his former co-obligors for contribution ; for while a promise of contribution is to be implied in favor of one joint obligor as against another, still that promise should naturally be limited so as to be construed as an agreement of the one to reimburse the other only in the event the latter is compelled' by the creditor to pay more than his ratable'portion of the debt, or in the event he pays it at a time when the creditor could compel him to pay it.

As stated above, if one of the joint obligors pays the debt in cash at any time before the debt is barred, he may sue for contribution at any time within 4 years from the date of his making the payment. Now suppose that when the creditor, seeing his debt about to be barred, demands the cash of one of the joint obligors, and the latter says, “I can not pay you in cash, but I will give you my promissory note for the amount,” and the creditor, being content with this obligor’s solvency, accepts his note in lieu of the cash, and, before this last note is paid, the time within which the original obligation should be sued in order to avoid the bar of the statute expires. What are the rights of the obligor who has thus paid by note instead of in cash, as against his co-obligors? And in looking for a satisfactory answer to this question, I find doubt as to the proper solution of the case at bar.

However, in looking over the sections of the code relating to the new promise implied from the fact of the debtor’s entering a credit on the note or other written obligation, we find a section (3790) providing that “a new promise revives or extends the original liability; it does not create a new one.” If one of the joint obligors enters a payment on the note, he does not pay off the old indebtedness. He merely revives or extends his original liability to the creditor, but does, so subject to the provisions of the other section of the code referred to, namely, that he extends it as an individual liability and not as a liability shared jointly by him and his original co-obligors. I think, therefore, that it is within the spirit of § 3792 of the Civil Code of 1895 to say that if one of the joint obligors thus severs the community of liability, he must per-feet his right of contribution by paying off the debt before it is barred as against the original joint obligation, else he loses it. Therefore, irrespective of how the question proposed above, where' the creditor accepts the note of one of the obligors not as an extension of the original liability, but in extinguishment of that liability, is to be answered, I think that the. result announced in the opinion in chief by my esteemed associate is correct; and I have written this concurrence only for the purpose of preventing the particular ruling made herein from being misapplied and given too wide a scope.