Josiah F. Day & als. vs. John Swann & als., 13 Me. 165

The opinion of the Court, after a continuance, was drawn up by Weston C. J. The two firms became sureties for each other in a transaction, from which each received equal benefit. Each firm had an equivalent for its suretyship, by an accommodation of the same character. There was a perfect reciprocity. An interchange of liability is frequently indispensable ; and each firm in giving the notes, was acting on partnership account. The liability, upon which the plaintiffs wore charged, was joint. It was assumed before the dissolution of their firm.

While obligations existing against them as a firm remained uncancelled, their concerns could not be entirely adjusted. With regard to them, their joint connection still continued. They pay the money, for which they had become sureties, and thence arises a remedy over, against the principals. Why should not that remedy he joint ? It is more favourable to the defendants, subjecting them to one action, instead of three. A promise of indemnity may be implied when the suretyship was assumed, and as that was joint, so was the promise implied. In the case of Doremus et al. v. Selden, 19 Johns.

R. 213, the plaintiffs had transferred the liability, which the defendants had assumed as indorsers of the note of hand to them, to whom they had indorsed it. The subsequent claim of the plaintiffs was founded altogether upon their payment of the note, which being a debt, for which the defendants stood previously liable to the holders, they thereby acquired a new claim upon the defendants. And this payment having been made severally and unequally by the plaintiffs, their right to remuneration was held to be several.

But the plaintiffs in the case before us, had jointly an implied promise of indemnity from the defendants, from the time they became sureties, which was not assignable in its character, as is the liability of the makers or indorsers of a negotiable note. In Graham v. Robertson, 2 T. R. 283, the difficulty was, that all the partners had not joined in the action.

If the plaintiffs had brought three actions, instead of one, the defendants might well have insisted, that they had jointly become sureties on their account, and that the plaintiffs’ claim being founded on their implied promise as principals to indemnify them, their action should have boon joint. The sheriff has returned a joint payment from the plaintiffs ; and if it wore competent for the defendants to show by parol, that one third came from the pockets of each, they might each be in possession of partnership property. They chose to regard the payment as joint.

And if they had prematurely divided the partnership funds, each might restore his portion of what was found to be necessary to meet a joint liability. Upon the facts agreed, the opinion of the Court is, that the plaintiffs are entitled to judgment.