WRIGHT et al. v. RUMPH, 238 F. 138

WALKER, Circuit Judge. The four appellants, J. H. Wright, J. H. Harrison, J. M. Back, and Martin Ballweg, filed an involuntary petition in bankruptcy against W. V. Rumph. The alleged bankrupt filed a motion to dismiss the petition, upon grounds suggesting the insufficiency of it upon its face.

This motion was granted, the order to that effect stating that the petition and the proceedings thereon “are hereby dismissed for the reason that in the opinion of the court said petitioners fail to show that they are three creditors with provable claims within the true intent and meaning of the acts of Congress relating to bankruptcy.” The averments of the petition showed the following facts: On the 2d day of September, 1915, the four petitioners, together with W. V. Rumph and J. N.

Thomas, for a valuable consideration executed and delivered as joint makers, and became and were equally bound to pay, two notes, one in the sum of $11,386.55, payable to the Ft. Worth National Bank, of Ft. Worth, Tex., and one in the sum of $10,000, payable to the Stockyards National Bank, of the same place; both of said notes falling due on the 1st day of December, 1915. Said Rumph failed and refused to, pay his pro rata part of said notes.

The petitioners, together with said Thomas, were compelled to pay, and did pay on the 1st day of December, 1915, all of said notes, principal and interest, to the said banks in the following manner: The petitioners and Thomas paid in full in cash the $10,000 note, each paying one-fifth thereof, $2,000, and they paid in cash on the principal and interest of the $11,386.55 note the sum of $7,695.20, each paying one-fifth thereof, $1,539.04, and then and there promised to execute their note for the balance due on the last-named note, which cash, payment, and the execution and delivery of the note for said balance, were accepted by the Ft.

Worth National Bank as full payment and discharge of the $11,386.55 note to it, and thereafter, on January 22, 1916, in pursuance of said promise; the petitioners and said Thomas executed their note, as joint makers, for the sum of $3,956.45, payable to the Ft. Worth National Bank. The petition alleged the insolvency of Rumph on December 1, 1915, and at the time the petition was filed in March, 1916, and the commission by him of acts of bankruptcy during the month of December, 1915.

To the extent'of one-sixth of the $2,000 paid by each of the petitioners to discharge the $10,000 note, his payment was of an amount which his co-obligor, Rumph, should have paid. While the six makers of the note were jointly bound as principals to the payee of it, yet, as between themselves, each was a principal only for his share, and a surety for the remainder. The law implies a promise from each of such obligors to each of the others that each will indemnify the other in case he pays more than his proportionate part of the obligation.

Each of the five joint obligors who together paid off the note, each paying one-fifth of the amount due, thereby acquired a separate right of action against the comaker who did not participate in the payment to recover of the latter one-fifth of the amount which he should have contributed as 'his proportionate part of the $10,000 payment. Faires v. Cockerell, 88 Tex. 428, 31 S. W. 190, 639, 28 L. R. A. 528; Bragg v. Patterson, 85 Ala. 233, 4 South. 716; 2 Elliott on Contracts, § 1393; 6 Ruling Case Raw, pp. 1044, 1046, 1061.

Without regard to the averments of the petition with reference to the payment of the note for $11,386.55, we are of opinion that it showed that the payment of the $10,000 note was so made as to give to each of the four petitioners a provable claim against the alleged bankrupt within the meaning of Bankruptcy Act, §§ 59, 63. The petition was not subject to be dismissed on either of the grounds stated in the motion made to that end. The decree dismissing the petition is reversed. <2&wkey;For other cases see same topic & KEY-NUMBER in all Key-Numhered Digests & Indexes