Robert Gaster v. Rosina Waggoner.
X. On general demurrer to a petition for contribution, in which it is alleged that a judgment, which had been wholly paid by the plaintiff, was recovered against the plaintiff and defendant for a certain sum in debt, it was properly held, that the claim, upon which such judgment was rendered, was founded on contract, and that the parties were jointly liable thereon.
2. Aprima facie case for contribution is made when it is shown that one of two joint debtors had paid more than a moiety of the debt.
Motion for leave to file a petition in error to reverse the judgment of the District Court of Wyandot county.
The judgment complained of was in affirmance of the judgment of the Court of Common Pleas of same county.
The error, assigned upon the record of the Common Pleas, was the overruling of a demurrer to the petition in the original action wherein the defendant in error was plaintiff', and the plaintiff' in error was defendant.
The action was brought to recover contribution for money claimed to have been paid by the plaintiff' for the use of defendant. The cause of action was thus stated: “ That on the 12th day of May, 1872, John D. Sears, R. McKelly, C. Berry, Jr., Henry Maddix, and D. D. Hare recovered a judgment in the Court of Common Pleas of Wyandot county, in the State of Ohio, against the plaintiff' and the defendant, Robert Gaster, for the sum of $1,206 debt, and costs of suit amounting to $6.96. That on or about the 1st day of June, 1878, the plaintiff, with her own means, paid off said judgment and costs in full,-whereby the defendant, Robert Gaster, became indebted to the plaintiff in the sum of $606.48, with interest from May 12, 1873,” etc.,
Chester JR. Mott, for the motion:
It should affirmatively appear from the petition for contribution, that the defendant was beneficially interested in *451the consideration of the joint liability upon which the judgment was obtained in order to raise an implied promise to contribute. No inference can be drawn from the judgment per se as to the equitable relations of the defendants to such judgment.
The amended petition demurred to is defective in not stating the nature of the cause of action that produced the judgment. 1 Greenl. on Ev., sec. 528 ; 4 Geo. 548 ; Santvoord’s Code PI. (N. Y.) 159.
John D. Sears, contra:
1. The judgment itself is a “ contract of record,” and purports a joint liability.
2. The judgment was for debt, and must have been rendered in an action upon contract. Metcalf on Contracts, 10, 11; 1 Parsons on Contracts, 31, 34, 37.
H. McKelley, also, contra.
By the Court.
If the defendant below had made objection to the petition, by motion to make it definite and certain, it should have been sustained. But, on general demurrer, we think there was no error in holding the petition to be sufficient.
It appears in the petition that the judgment, the whole of which was paid by plaintiff, had been recovered against her and the defendant jointly, and that the recovery was for a “ debt.” By these averments it is fairly made to appear that the claim on which the judgment had been recovered was founded on contract, and that the parties against whom the joint judgment was rendered were jointly liable for the claim. The case thus stated in the petition was prima facie in favor of the plaintiff’s right to contribution.
As between joint debtors, there is no presumption of law that either is primarily liable for the debt; nor is there a presumption that any fact or relation between them exists which would show that each is not equitably bound, as between themselves, to pay his proportionate share of the *452debt. If there be such primary liability, or if there be no equitable obligation as between themselves to pay proportional shares, the facts which rebut the presumed equity should be set up by way of defense, and need not be negatived in a petition for contribution.
Motion overruled.