The plaintiff’s assignors having paid the promissory note on which the defendant with themselves and two other persons had become bound jointly and severally to the payee as sureties, the right accrued to enforce contribution in an action at law. And, notwithstanding the decease of one of the co-sureties, the plaintiff is entitled to recover, not one quarter, but one fifth of the amount which he has paid. Griffin v. Kelleher, 132 Mass. 82, 83, and cases cited.
By the tenor of the note the payee was charged with notice of the relations between the principal debtor and the sureties. Guild v. Butler, 127 Mass. 386, 389. And the payee, as the jury could find, having voluntarily relinquished without the consent or knowledge of the sureties a part of the security, the defendant, even if not thereby entirely discharged, would be exonerated to the extent to which he had been injured.
While this defence may be made at law as well as in equity by a surety sued for' contribution, yet it is unavailable because not pleaded. Guild v. Butler, ubi supra. Friedenwald Co. v. Warren, 195 Mass. 432, 434. And whether after a verdict for the plaintiff the *574defendant should have been permitted to amend his answer setting up exoneration, where unless the motion was denied a new trial would be necessary, as the jury had not passed upon the issue, was a question within the discretion of the presiding judge, whose refusal to allow the amendment shows no error of law. Darrow v. Braman, 201 Mass. 469, 472.
The remaining defences of the statute of limitations, the extension of the time of payment of principal and interest by the acceptance of instalments, and that upon demand the assignors voluntarily paid the amount remaining due on the note, and that the payee lost its rights against the sureties because it failed "to sell, but remained inactive while the security depreciated and finally became worthless, are unsupported by the record.
The note expressly provides, “And it is part of the undertaking of the sureties hereon that their liability shall continue as long as this note or any part of the same or any renewals thereon or part of said renewals remain unpaid notwithstanding any extension or extensions of the time of payment at the same or any other rate of interest and without notice to them.” Nor is it shown that the assignors knew of the partial surrender of the pledged shares. And a surety, being bound to pay the debt, is not obliged to incur the costs of defending an action. Warner v. Morrison, 3 Allen, 566.
If the value of the collateral which the payee held not merely for its own security but in trust for the indemnity of the sureties has been lost through forbearance or delay, no wrongful conduct of the payee appears. The sureties did not move. They could have discharged the debt at any time before depreciation set in and received the security. But having remained inactive, and there being no evidence of any affirmative act of negligence by the payee which resulted in their injury, the defendant has not been discharged either wholly or partially. American Surety Co. v. Vinton, 224 Mass. 337, 339, 340. Gray v. Farmers’ National Bank, 81 Md. 631. Benedict v. Olson, 37 Minn. 431. Newark v. Stout, 23 Vroom, 35. Schroeppell v. Shaw, 3 Comst. 446. Hayes v. Ward, 4 Johns. Ch. 123, 130. Otis v. Von Storch, 15 R. I. 41. Uniontown Bank v. Mackey, 140 U. S. 220.
We have considered all the questions argued and by the terms of the report the plaintiff is to have judgment on the verdict.
So ordered.