Clapp v. Rice , 81 Mass. 557 ( 1860 )

Hoar, J.

It is very clear that co-sureties are liable to contribution among themselves; and that the discharge of one of them from his principal obligation, if the others are not discharged, will not release him from the liability to contribute for their indemnity.

The only other exception relied upon by the defendants’ counsel is that which relates to the right of the plaintiffs to join in the action. The jury have found that the relation of the plaintiffs and the defendants’ intestate, as indorsers of the note to the Franklin County Bank, was that of co-sureties. The plaintiffs, having been sued and judgment recovered against them, were jointly liable to pay the debt. Each of them was answerable to the bank for the whole sum due. Under these circumstances, the defendants making no contribution toward the payment, a contribution was made by the three plaintiffs, by which each furnished a sum sufficient to pay the fourth part for which he was ultimately liable, and also a third part of the remaining quarter which it was the defendants’ duty to pay. It was paid to the bank as one entire payment.

We are of opinion that when three persons, each of whom is responsible for an entire sum due from another, join in making the payment' of that sum by a contribution agreed on among themselves for that purpose, they may join in one action to recover it from the person for whose benefit the payment has been made. The principle was settled in the case of Hadsell v. Hancock, 3 Gray, 526; and is not only highly equitable in itself, but is beneficial in its operation to the defendants, by avoiding a multiplicity of suits.

Exceptions overruled