There are certain fundamental legal principles applicable to this case, concerning which we are all agreed: — First, that the right to contribution does not depend upon a contract between the parties, but results from the equitable principle that where two or move persons sustain the same relation to a debt or obligation, no one of them, as between themselves, shall be compelled to bear the whole burden, but all may be required to contribute equally. Equality is equity. Second, that the relation of principal and surety is founded in a contract express or implied. That relation never results from mere operation of law, but is the result of an express contract between the parties, or a contract which may fairly be implied from the position in which the parties have intentionally placed themselves. A right to contribution necessarily results from the first, and a right to full indemnity from the second.
There are certain facts also concerning which there is no dispute: — That, as between the four makers of the note, Williams was the only principal, and that each one of the other three was a surety for him; that all signed the note before it became operative by the payment of the money to Williams; and that Williams obtained a discharge in bankruptcy, after which a joint judgment was rendered in favor of the payee against the three sureties, which judgment was paid by the plaintiff and Rood. From these premises, of law and fact, the conclusion is inevitable that the plaintiff and defendant were co-sureties, and that the plaintiff is entitled to contribution; unless the circumstances now to be alluded to compel us to a different conclusion. *Page 476
It is said that Williams and the bank each asked the defendant to sign as surety for Bulkeley and Rood as well as for Williams, and the fact is emphasized that he did not become a surety for Williams alone. Be it so. This concession, however, does not aid the defense. The fact still remains that he was surety for the principal debtor, and none the less so for his being, in some sense, a surety for Bulkeley and Rood. Such a suretyship, if any existed, could in no wise affect the suretyship for Williams.
But the defendant was not a surety for Bulkeley. I am aware that the court below says: — "The court also finds, from all the evidence in the case, the relation between the plaintiff and defendant to be that of principal and surety." I regard that as a conclusion of law, for the conceded facts abundantly show that it was legally impossible for him to have been a surety for Bulkeley in the same sense that he was surety for Williams. Bulkeley never requested the defendant to become a surety for him, and nothing occurred between the parties from which a contract of suretyship can be implied. No reason existed for such a contract. It would have added nothing to the security of the bank, and would have been of no advantage to either the plaintiff or defendant. The request by Williams and the bank that the defendant should sign the note as surety for Bulkeley is a strange one. It is impossible to see that a compliance with that request would have been of the slightest benefit to any one. But be that as it may, it is certain that it did not establish, nor tend to establish, between these parties the relation of principal and surety. Nor is the defendant's intention to sign as such surety of any account. The relation of principal and surety could not spring from the secret intention of one of the parties. Neither is the word "surety," prefixed to the name of the defendant, of any avail to show that he was surety for another surety. Full effect is given to that word when it is shown that he was surety for Williams. But there is a sense in which the defendant might have become a surety for Bulkeley without his knowledge, and that is by a guarantee. A guarantee is not the contract *Page 477 expressed in the note, but is collateral to it. Such a contract the defendant was not asked to sign; he was asked to sign the note, and he signed it. He thereby assumed a primary and absolute liability, and not a collateral and contingent one. The suit on the note was against the three sureties as makers, and resulted in a joint judgment against them. That conclusively fixes the defendant's liability as a joint obligor with Bulkeley and Rood.
The legal result of the transaction was a promissory note signed by one principal and three sureties. As between the bank and those who signed the note, all were makers and jointly liable. As between the makers themselves, Williams alone was principal, and the other three were cosureties.Monson v. Drakely, 40 Conn., 552.
The only ground on which the defense rests is that House not only became a surety for Williams, but also, at the same time and by the same act, became a surety for Bulkeley; that is a surety for a surety. That such a relation may legally exist is not denied, but that Bulkeley and House ever entered into such a relation is denied. And the bank and Williams had no authority to place Bulkeley in that position.
Let us test the soundness of this defense. If the relation of principal and surety exists between these parties then House is a surety as to Bulkeley, and Bulkeley is a principal as to House. Certain legal consequences necessarily follow from this relation, — and among them is this; if the surety pays the debt he is entitled to indemnity from the principal. Now it is conceded that if House had paid this debt, as he might have been compelled to do, he would have had no claim against Bulkeley. That seems to amount to a legal demonstration that the relation does not exist. The defense then is driven to assume this position — that House is a surety for Bulkeley, but Bulkeley is not a principal. In other words, one half of the relation of principal and surety exists, and that is sufficient as a defense to this action; but the other half does not exist, and therefore House, had he paid the debt, would not have been entitled to indemnity from Bulkeley. But that cannot be so. If the *Page 478 relation exists as to one it exists as to both, and the right to indemnity necessarily follows. There is no middle ground.
One thought more. Here is a judgment against Bulkeley and House. House is equally liable with Bulkeley. But Bulkeley has paid the whole. He is therefore entitled to contribution unless it can be shown that, as between themselves, it was Bulkeley's duty to pay the whole. No such duty has been shown. Therefore the defendant, as a joint debtor, is liable to contribution.
I am not unmindful of the fact that there are cases which apparently give some support to the position of the majority. One of them, and perhaps the strongest, isSayles v. Sims, 73 N. York, 552. I will not notice these cases at length, but will say generally that they are not binding in this jurisdiction. They are only valuable as the reasoning by which they are supported commends itself to our judgment. Most of them obviously are not well considered. They are inconsistent with the general principles applicable to the subject, are in conflict with the decided weight of authority, and have little or no foundation in principle.
It seems clear to me that the court below erred, and that injustice was thereby done to the plaintiff.
In this opinion, TORRANCE, J., concurred.