Odell v. Dana , 33 Me. 182 ( 1851 )

Wells, J.

— The note in suit was signed by Abigail O. Ripley, as principal, and by the defendant as surety. It was given in August, 1837, and in October, 1842, a payment of a part of it was made by the defendant and indorsed upon it. The defendant offered in evidence the deposition of the principal upon the note. If that was inadmissible the default is to stand. The note would be barred by the statute of limitations, if the payment had not been made by the defendant. And the principal by that payment is not deprived of the benefit of the limitation provided by statute, by the terms of which one joint contractor shall not lose the benefits of its provisions by a promise or payment made by another. The liability of the principal then to the plaintiff, is not continued by this act of the defendant, and it does not appear that the plaintiff can maintain any action against her, more than six years having elapsed since she signed the note. But if the defendant can recover against her when he shall have paid the note, she is interested in his favor to defeat the action, and her deposition was properly excluded.

The object of the statute, chap. 146, sect. 20 and 24, was to change the rule of law, so that one of two or more joint contractors could make no payment, promise or acknowledgment, that would have the effect to deprive either of the others of the benefit of the statute, in an action by their creditor. If the defendant had made the payment after the limitation had attached, or a written promise before or after, thereby charging himself when he would otherwise be discharged, he could have no right to reimbursement for a claim thus voluntarily created. But at that time, he might have been compelled to pay the whole debt, and if the whole, so also a part, and thus he was discharging, not an assumed obligation, but one imposed on him by law. If in so doing, his liability is prolonged, it is the result of the law applicable to the contract, and furnishes no just ground on the part of the principal to object to a repayment. His claim against the principal, when he shall have paid the debt, will arise from paying what he was bound to pay by an obligation founded in the contract, the duration of which was extended by an act, that he could have been coerced to perform.

A different construction of the statute would throw the whole debt upon a joint contractor, who had conducted with the utmost good faith, in making a partial payment, and had done nothing more than his legal duty. And if by successive payments, the liability may be indefinitely extended, one, who has not paid his just proportion of the debt, has no legal or equitable cause of complaint.

In N. H. a payment by one joint debtor does not take a case out of the statute as to another. Exeter Bank v. Sullivan & al. 6 N. H. 124. Yet in Peaslee v. Breed, 10 N. H. 489, it was decided, that “ where the liability of one joint maker of a promissory note is continued by partial payment's within six years, but • the remedy of the holder against the other is barred by the statute of limitations ; the debtor, who continues liable, may, notwithstanding, recover a contribution from the other, when he has paid the debt/’ And it is said by Parker, C. J., “ On the facts in this case, the liability of Peaslee was at all times continued, and the case, as to him, taken out of the operation of the statute of limitations; not by any new agreement, or assent to any new agreement, not contemplated by the original contract; but by a part performance of what was stipulated in the original contract itself. The defendant, therefore, cannot object that Peaslee paid wrongfully, or that the payment does not come within the implied promise to contribute.”

The principal is bound by an implied promise, to indemnify the defendant for whatever he may be holden to pay in this action, and is therefore directly interested.

According to the agreement of the parties, the default is to remain, and the defendant to be heard in damages.