Matthews v. Millsaps , 58 Miss. 564 ( 1880 )

Chalmers, C. J.,

delivered the opinion of the court.

John D. Moore, sheriff of Lincoln County, executed his official bond as such, with Millsaps, Hoskins, Lewenthall, and Bennett as sureties. Thereafter, Lewenthall and Bennett applied to the Board of Supervisors of the county to be released from said suretyship, in accordance with the provisions of sect. 316 of the Code of 1871, and Moore, having notice of said application, appeared before the board, accompanied by J. P. Matthews, and by the consent of the board, aud in their presence, Matthews affixed his name to the bond, and thereupon the names of Lewenthall and Bennett were effaced from it by lines of red ink traced over them. All parties acquiesced in and accepted this as a substitution of Matthews as surety on the bond in lieu of Lewenthall aud Bennett. The sheriff having thereafter made default, and suit having been instituted on the bond, it was by this court decided that the attempted substitution of sureties failed of its intended effect in consequence of non-compliance with the statute regulating the manner of obtaining release by sureties on official bonds, and that Lewenthall and Bennett were not released by the erasure of their names from the bond, nor Matthews bound by the affixing of his. The State v. Matthews, 57 Miss. 1.

After this decision by us the suit progressed in the lower court to final judgment against all the sureties, including Lewenthall and Bennett, but not including Matthews, as to whom the action was dismissed. The judgment rendered has been paid by Millsaps and Lewenthall, who now bring this bill against their co-sureties for contribution, and to it they have made Matthews a party defendant. The latter demurs, upon the ground that, not being legally a surety on the bond, and not bound to the State by his signature to it, he cannot be called upon for contribution. His demurrer being overruled, he appeals, and the rightfulness of the action on the demurrer is the only question before us,.

The bill seeks to impose upon Matthews an obligation to contribute, upon two grounds: First, that it is not essential that he should be a surety to the State for the sheriff’s default, or legally liable therefor, if in fact he had agreed to assume the relation of surety so far as the other sureties were concerned ; and, second, that as to such other sureties he is estopped to deny that such was his character.

We cannot agree that there can be any right among sureties to call for contribution upon one who is in no manner liable to the creditor, though the Supremo Court of Connecticut seems to have so held in the case of Monson v. Drakeley, 40 Conn. 552. We say, seems to have so held, because the Connecticut court do not explicitly declare whether the party held liable for contribution in that case was or was not originally bound to the creditor for the common debt. If he was not, we can perceive no valid ground upon which he can be held liable for contribution.

The duty of contribution, on the one hand, and the right to demand it, on -the other, spring out of a common burden resting upon two or more persons occupying towards the party who' has the right to enforce it a like position. It need not exist by virtue of the same instrument, nor is it essential that the party first bound shall have either privity with or knowledge of the liability of the other, but it is essential that the common liability shall exist, and that it shall be of like character; that is to say, the parties must occupy towards the creditor exactly the same attitude.

It is not sufficient that they are both bound for the debt, if they occupy different attitudes towards it, and are bound in different degrees and by independent relations. Thus, the right of contribution does not exist between successive indorsers, nor in favor of or against a guarantor at the suit of other parties bound on the same contract. The party who calls for contribution must show that the person upon whom he makes the demand was not only bound for the debt which he has paid off, but also stood towards it in exactly the same legal relation as himself. Certainly, then, it must be an all-sufficient answer if the party called upon can respond that he never was legally bound in anjr manner whatever.

In the case at bar, Matthews came under no liability to the obligee of the bond, —the State, — and it is quite apparent that he never even intended nor proposed to become a co-surety with complainant Lewenthall. The vain attempt made by him was not to become a co-surety with Lewenthall, but to be substituted for him, and thereby to release him altogether. Whatever obligation, therefore, he may be under to Lewenthall, he certainly is not a co-surety or coobligor with him, and never proposed to be. If he had succeeded in accomplishing what was attempted, he would not have been bound in the same degree or manner as Lewenthall, but would have stood in a wholly different attitude. It is manifest, therefore, that he cannot be called on for contribution by Lewenthall. It is equally apparent that Millsaps is not entitled to demand contribution of him ; because, as he was not bound to the State, he was never a co-surety with Millsaps, nor occupied any other legal relation to him whatever.

The result is the same, so far as this suit is concerned, upon the doctrine of estoppel. If Lewenthall is entitled to estop Matthews from denying the validity of his signature because by such signature he (Lewenthall) was induced to forbear a further prosecution of his proceedings before the Board of Supervisors, and thereby failed to obtain the release which otherwise he must have obtained, the result must be that he is entitled to hold him as a substituted surety or indemnitor for himself, but certainly not as a co-surety.

If the scheme attempted had succeeded, Lewenthall would have ceased to be a surety, and Matthews would have become one. If, therefore, Lewenthall is entitled to hold Matthews to this attitude, his remedy is not by a bill in chanceiy for contribution, but by a common-law action for money paid to his use; and this will embrace, not a proportionate part, but all the money paid by the former. As to the legal result of such a suit we express no opinion.

As to Millsaps, there is no element of estoppel in the case. He was no party to the proceedings for a substitution of sureties. He still has exactly the associates with whom he embarked. The defacement of the names of two of them (Lewenthall and Bennett) and the affixing of Matthews’ name in their stead was an idle thing to him, and in no manner affected his rights. By it he neither lost the right to call on the old sureties, nor acquired the right to call on the supposed new one. He stands exactly where he did originally, and being in no respect damnified by the proceedings before the supervisors, cannot invoke the doctrine of estoppel by reason of them.

Decree reversed, demurrer sustained, and bill dismissed as to Matthews, without prejudice as to any legal rights of Lewenthall and Bennett amiinst him.