Dole v. Warren , 32 Me. 94 ( 1850 )

Tenney, J.

The facts reported in this case bring it within the principle of the cases of Woodward v. Herbert & al. 24 Maine, 358, and Ellis v. Ham, 28 Maine, 385. The claim of the plaintiff was one, which might, by possibility, exist at a future time, when the defendant filed his petition to become a bankrupt, and when he was decreed to be such ; but it was then so uncertain, that it could not have been proved as a claim against the bankrupt’s- estate, and was not discharged by his certificate.

The voluntary discontinuance as to Warren by Whitman in the suit, upon the bond against Lancy and his sureties, cannot relieve him from liability to contribution. This discharge from the action was the act of one, who was fully empowered by the statute to make it, on the payment of costs, and could not have been controlled therein by the plaintiff. The obligation of the defendant to the plaintiff now sought to be enforced, arises under a contract entered into at the time the bond was executed. By becoming sureties on the bond, each impliedly promised all the others, that he would faithfully perform his part of the contract entered into by the obligors, pay his proportion of loss arising from the total or partial insolvency of the principal, and to indemnify them against any damage by reason of his neglecting to do so. Howe v. Ward, 4 Greenl. 195. This contract between the sureties was entirely unaffected by the omission of Whitman to prosecute the suit against the defendant. As long as he was able to obtain a judgment against the principal, the plaintiff and another of the sureties, and upon that judgment received a payment from the plaintiff, the event had happened, in which the defendant had failed to fulfil his promise to the plaintiff and to his damage. Whether the defendant would have been still liable on the bond, after the suit was discontinued, for any balance, which might remain due, is not a question that we are called upon in this action to decide. The plaintiff having paid money, or its equivalent, on account of his joint suretyship with the defendant, is entitled to recover one quarter part of the same from him, according to the agreement of the parties. Defendant defaulted.