Gaster v. Waggoner ( 1875 )

By the Court.

If the defendant below had made objection to the petition, by motion to make it definite and certain, it should have been sustained. But, on general demurrer, we think there was no error in holding the petition to be sufficient.

It appears in the petition that the judgment, the whole of which was paid by plaintiff, had been recovered against her and the defendant jointly, and that the recovery was for a “ debt.” By these averments it is fairly made to appear that the claim on which the judgment had been recovered was founded on contract, and that the parties against whom the joint judgment was rendered were jointly liable for the claim. The case thus stated in the petition was prima facie in favor of the plaintiff’s right to contribution.

As between joint debtors, there is no presumption of law that either is primarily liable for the debt; nor is there a presumption that any fact or relation between them exists which would show that each is not equitably bound, as between themselves, to pay his proportionate share of the debt. If there be such primary liability, or if there be no equitable obligation as between themselves to pay proportional shares, the facts which rebut the presumed equity should be set up by way of defense, and need not be negatived in a petition for contribution.

Motion overruled.