McComb v. McComb , 226 Va. 271 ( 1983 )

STEPHENSON, J.,

dissenting.

I do not believe the evidence supports a finding that the debt was the joint obligation of the McCombs. To the contrary, the evidence conclusively shows that the debt was the responsibility of J. C. McComb alone. Bernard Blankenship, one of the creditors, testified that J. C. was the sole obligor, and the evidence does not indicate that Anne McComb ever promised to pay her parents or that they expected payment by her.

Although J. C. testified that the debt was a joint obligation, his acts totally belie his words. The note was written and signed by J. C. at a time when, according to the trial court’s finding, Anne McComb was not present. It states, “I J. C. McComb promise to pay . . . the four thousand dollars . . . lent to me . . . .” (Emphasis added.) Moreover, it is most significant that, when J. C. satisfied the note, he paid $4,000, rather than $2,000, the amount he claims he owed.

Despite this evidence, the majority concludes that the trial court correctly found the McCombs jointly liable for the debt. Parental concern motivated the loan, and obviously Anne McComb benefit-ted from the money. The majority, however, confuses “joint benefit” with “joint obligation.” In my view, the evidence compels the conclusion that, in advancing the money, Anne’s parents intended to confer a joint benefit to Anne and J. C. but to impose on J. C. alone the legal obligation to repay.

J. C.’s voluntary payment of the debt is a further reason why his claim is meritless. Although the note was payable “on demand,” no demand was made by the creditors. To the contrary, J. C. testified that when he wrote his father-in-law a check, Blankenship “told [him] he wouldn’t take it. He said, T know you don’t have it.’ . . . And he gave me the check back and said, T don’t want this.’ ” Nevertheless, later the same night, J. C. went to the Blankenships and said, “please take this money because I have heard nothing but about this money for I don’t know how long.” Bernard Blankenship testified, “[m]y wife and I never asked him for a cent of that money.”

The evidence is conclusive, therefore, that the creditors neither demanded payment, nor had any intention of requiring payment until J. C. was financially independent. For the doctrine of contribution to apply, “the payment must have been made upon a debt for which the defendant [Anne McComb] was legally liable at the time of the payment, and which the obligor who pays [J. C. McComb] was compellable to pay . . . .” Turner’s Adm’r v. Thom, Trustee, 89 Va. 745, 747, 17 S.E. 323, 324 (1893). Obviously, J. C. was under no compulsion to pay.

In sum, Anne McComb was not an obligor, and, even if she were, J. C. McComb was not compelled to satisfy the obligation. For these reasons, I would reverse the judgment of the trial court and enter judgment for Anne McComb.

COCHRAN and COMPTON, JJ., join in dissent.