Whitman v. Porter

107 Mass. 522

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1871
• Status: Published

Opinion

Chapman, C. J.

The association between the proprietors of the ferry boat was in substance a partnership. The debts were contracted and the notes were given for the benefit of the company. As between themselves, they were ultimately liable in proportion to their interests. But as to creditors, each was liable for the whole. The case is therefore unlike that of Andrews v. Callender, 13 Pick. 484, cited by the defendants’ counsel; for in that case the debt was due from a corporation in which the parties were stockholders, and their liability was merely under existing statutes. Nor is it like the case of Winsor v. Savage, 9 Met. 346, cited by the defendants, for there the plaintiff paid the defendant’s debt without request, being in no way liable for it.

We do not think the payment by the plaintiff’s intestate belongs to the class of voluntary payments of another’s debt by a stranger to it.

A bill in equity is the proper remedy for contribution; and when some of the parties mutually liable are insolvent or have removed without the jurisdiction of the court, the plaintiff may recover in equity a contribution for the whole from the parties who remain. Cary v. Holmes, 16 Gray, 127.

Decree for the plaintiff, with costs.