
    Baltimore & Ohio Railroad Co. v. Walker.
    
      Railroad companies — Watchmen at crossimgs — Ooniribution—Rev. Skits., sec. 3333.
    1. A railroad company which has the possession and control of a railroad in this state, and is managing and operating the same, as the lessee , thereof, is one “ owning the tracks ” of such railroad, within the meaning of section 3333 of the Revised Statutes, which provides that: “ When the tracks of two railroads cross each other, or in any way connect, at a common grade, the crossings shall be made and kept in repair, and watchmen maintained thereat, at the joint expense of the companies owning the tracks.”
    2. The necessity for keeping the crossing in repair, and maintaining watchmen thereat, grows out of the use and operation of the railroads crossing each other at a common grade, and the benefits thereof accrue to the companies using and operating the roads; and, as such lessee-company, while operating its road receives the benefit and security resulting from a safe crossing and the services of the watchman, it takes them subject to the burden of their expense, as provided by the statute.
    3. Where two or more are under a joint obligation to perform some lawful duty involving the expenditure of money, and one of them performs the whole duty and discharges the obligation, he is entitled to have contribution from the others equally bound with him; and this is so whether the obligation arises from contract or operation of law. The right depends upon equitable principles rather than upon contract, but from the equitable obligation the law implies a contract to equalize the common burden, and if there is no circumstance rendering the equities otherwise than equal, and no express agreement, the contribution should be so made that the common burden shall be borne equally by all bound by the common obligation.
    4. The statute (section 3333 of the Revised Statutes) imposes upon railroad companies, the tracks of whose roads cross each other at a common grade, the joint duty and obligation of making and keeping in repair the crossing and maintaining watchmen thereat, and requires the expense thereof to be borne by the companies jointly. The burden is common to both companies, and where either performs the whole duty and pays the whole expense, it is entitled to recover from the other its equal proportion thereof.
    (Decided March 13, 1888.)
    Error to the Circuit Court of Knox County.
    On the 2nd day of January, 1882, Goshoru A. Jones, receiver of the Cleveland, Mt. Vernon & Delaware Railroad Company, filed his petition in the court of common pleas of Knox county against the Baltimore & Ohio Railroad Company, alleging “that the said Cleveland, Mt. "Vernon & Delaware Railroad Company is a corporation, created and organized under the laws of the state of Ohio, and under said corporate name, built, constructed and operated a line of road extending from Hudson to Columbus, Ohio, by the way of Akron and Mt. Vernon, Ohio, and have conducted and operated said railroad under said corporate name from about the 1st of July, 1873, up to the 1st day of December, A. D. 1881. That on or about the 27th day of September, 1880, the said Goshorn A. Jones was by the judge of the court of common pleas within and for the county of Summit, Ohio, in a certain proceeding therein pending against said Cleveland, Mt. Vernon & Delaware Railroad Company appointed receiver of said railroad company, which position he accepted by executing a bond to the acceptance of said court, and entered upon the discharge of his duties as receiver; that he is still acting in the said capacity. The said plaintiff says that the said defendant, the Baltimore & Ohio Railroad Company is a foreign corporation, created and organized under the laws of the state of Maryland, and is now and was on the 1st day of July, A. D. 1873, the lessee of the Sandusky, Mansfield & Newark Railroad Company, a corporation created and organized under the laws of the state of Ohio, and as such lessee the said defendant manages, controls and operates the line and track of said Sandusky, Mansfield & Newark Railroad Company from the city of Sandusky to the city of Newark, in said state of Ohio, and through the county of Knox and a portion of the city of Mt. Vernon, and the said defendant, the Baltimore and Ohio Railroad Company runs its passenger and freight trains, locomotive engines and cars, and machinery, over axxd xipon said tx’ack and line of road. The said plaintiff says that the railroad track of said Cleveland, Mt. Vernon & Delaware Railroad Company, and the railroad track of the Baltimore & Ohio Railroad Company on the Lake, Erie division, a short distance southwest of Mt. Vernon, Ohio, cross each other at a common grade; that the crossing at said point was made and constructcd by tbe said Cleveland, Mt. Vernon & Delaware Railroad Company about the 1st day of July, A. D. 1873; that all the material used and labor performed in constructing said crossing, including the materials used and labor performed in building the watchman’s house, were all furnished, supplied and paid for by the said Cleveland, Mt. Vernon & Delaware Railroád Company; that said crossing and house for a watchman was done, and constructed for the common interest, benefit and necessity of the Cleveland, Mt. Vernon & Delaware Railroad Company, and the defendant, the Baltimore & Ohio Railroad Company; the plaintiff says that from the 1st day of October, 1873, the said Cleveland, Mt. Vernon & Delaware Railroad Company have kept, maintained and paid the salary of a competent watchman, who performed all the necessary work, labor and services required by the laws of Ohio; that the services of said watchman were for the mutual benefit of the said plaintiff and the said defendant, and such as was and is required by the laws of Ohio, to be kept and maintained at railroad crossings. The said plaintiff says that the amouut of expenditure necessary to be made for the construction and repairs, and maintainance of said railroad crossing, with the amount paid the watchman, and for erection of the watchman’s house, from said 1st day of October, 1873, to the 1st day of December, A. D. 1881, amounts, with interest, to the sum of ($5789.05), five thousand seven hundred and eighty-nine dollars and five cents, an itemized statement of said account of expenditures is hereto attached, marked Exhibit “A” and made a part of this petition.
    “ The said plaintiff further says, that said defendant became and was® liable to bear and pay one-half of said expense, and the said defendant is now indebted to the said plaintiff in the sum of ($2894.52), two thousand eight hundred and ninety-four dollars and fifty-two cents, the one-half of the said sum of $5789.05, the amount paid out and expended by the said plaintiff as aforesaid, with interest included.
    “The plaintiff has frequently requested and demanded of the said defendant payment of the said sum due the plaintiff, which the said defendant has refused to pay, or any part thereof.
    “ There is now due from said defendant to said plaintiff the said sum of two thousand eight hundred and ninety-four dollars and fifty-two cents, for which sum of $2894.52 the plaintiff prays judgment against said defendant with interest from the 1st day of December, 1881.”
    The itemized account attached to the j>etition as exhibit “A” commences July 1, 1873, and ends with December 15, 1881. The first item is for “crossing frogs” and the next dated October 1, 1873, is for “material furnished and labor performed in building the watchman’s house.”
    Then follow regular monthly charges for amounts paid the watchman, and regular annual charges for amounts paid for signal supplies, with interest on each charge to December 1, 1881.
    The defendant demurred “to all the items in said account, which accrued prior to January 2, 1876 ” on the ground that they were barred by the statute of limitations, more than six years having elapsed from their date, before the commencement of the action.
    The demurrer was sustained by the court, and the defendant then answered, as follows :
    “ Answering to so much only of plaintiff’s jaetition and pretended claim against this defendant as remained after the sustaining of the court of the demurrer of the defendant filed heretofore in this case to certain parts and items of said petition, as more fully appears of record, it denies that defendant became and was liable to bear and pay any part of said expense of putting in said crossing and watchman’s house and maintaining the same, or any part of the expense of maintaining a watchman at said crossing, and denies that defendant is now or ever was indebted to said plaintiff or to said Cleveland, Mt. Vernon & Delaware Railroad Company, by reason of the putting in and maintaining said crossing, watchman’s house and maintaining said watchman at said crosssing, in any sum whatsoever, for defendant avers that at the time of putting in said crossing, and building said watchman’s house, as averred and stated in said petition, the said Cleveland, Mt. "Vernon & Delaware Railroad Company, for a valuable consideration then and there received by the said Cleveland, Mt. Vernon & Delaware Railroad Company from and by this defendant then and there paid and delivered to said Cleveland, Mt. Vernon & Delaware Railroad Company, agreed and contracted with this defendant to put in said crossing and furnish all material therefor, and furnish all material and build said watchman’s house, and forever keep up and maintain said crossing and said watchman’s house, and forever to keep and maintain a watchman at said crossing, all at the expense and costs of said Cleveland, Mt. Vernon & Delaware Railroad Company, and this defendant to pay or bear no part of the expense of constructing said crossing or watchman’s house and no part of maintaining or keeping the same in repair, and to pay no part of the expense of maintaining said watchman at any time. And defendant avers that, in pursuance of said arrangement and contract, the said Cleveland, Mt. Vernon & Delaware Railroad Company did, at the time mentioned in said petition, put in said crossing and build said watchman’s house and has ever since maintained the same, and has ever since maintained and employed a watchman- at said crossing, all at the proper expense of said Cleveland, Mt. Vernon & Delaware Railroad Company, which last mentioned company has never claimed, pretended or intimated, until within a very short time prior to the commencement of this suit, that said defendant should be chargable with any part of said expense.”
    Tiie answer contains a second defense, pleading the statute of limitations to such items as accrued less than six and more than four years before the action was commenced. This of course was no defense, was not relied upon,and need not be further noticed.
    The reply admits :
    “That plaintiff furnished all the material put in said crossing, erected the watchman’s house, and has ever since maintained the same and paid the watchman; and the plaintiff denies each and every statement and allegation in said answer contained not expressly admitted and set out in the petition.”
    It appears from the record that while the action was pending in the court of common please, Jones ceased to be receiver and that George D. Walker, who had been appointed his successor was, by consent of the parties and the order of the court, substituted as party plaintiff. And thereupon the cause was submitted to the court, and judgment rendered for the plaintiff. The motion of the defendant for a new trial was overruled and a bill of exceptions was duly taken which states that “the said cause was submitted to the court on the pleadings alone, and no testimony was offered by either party to sustain the issues made by the pleadings herein,” and that the court “ rendered judgment against the defendant and in favor of the plaintiff on the pleadings.”
    The defendant prosecuted error to the circuit court where the judgment was affirmed, and then filed his petition in error in this court to reverse those judgments.
    
      Cooper & Moore and J. II. Collins, for plaintiff in error.
    
      II. H. Greer, for defendant in error.
   Williams, J.

The case was submitted to the court of common, pleas upon the pleadings, and some questions are raised here as to their effect, which will be noticed before considering the more important questions in the case. It is first claimed that it was error to render judgment for the plaintiff without proof of the .value of the items of the account attached to the petition, because the allegations of their value were not admitted by the failure to controvert them by answer. The petition, however, does not seek to recover the value of the services of the watchman, or of the signal supplies, but the amounts paid and expended by the plaintiff therefor. There are no allegations of value in the petition to be controverted by answer, or considered as controverted by failure to answer; and if there were, the court might in its discretion render judgment, without proof. It has been held by this court that where judgment is rendered on default for answer in such case without requiring proof, there is no error for which the judgment will be reversed. Dallas vs. Ferneau 25 Ohio St. 635. And the reasons for so holding apply with equal force to cases where the defendant answers, leaving unchallenged the items of the account, and defends upon another and distinct ground, such as payment, or as in this case, that the defendant by agreement between the parties, was exonerated from payment, and consents to the submission of the case, without questioning the correctness of any item in the account. Again it is claimed by the plaintiff in error that the answer puts in issue the averments of the petition, because it denies “ that the defendant became liable to bear any part of the expense of putting in the crossing and watchman’s house and maintaining the same or any part of the expense of maintaining the watchman at the crossing ”; and also denies “that the defendant is now or ever was indebted to the plaintiff or to the Cleveland, Mt. Vernon & Delaware Railroad Company, by reason of the jmtting in and maintaining said crossing, watchman’s house, and Avatchman at said crossing in any sum whatever.” These denials are mere conclusions of laAvs or denials of such conclusions. Rolling Stock Co. v. Railroad, 34 Ohio St. 467; Larimore v. Wells, 29 Ohio St. 13; Knox County Bank v. Lloyd, 18 Ohio St. 353. Beside, they are to be regarded as conclusions of the pleader draAvn from the statement of facts accompanying them, and Avhich constitutes the real defense. It will be noticed that the defendant denies its liability and indebtedness to the plaintiff, “for it avers” that the Cleveland, Mt. Vernon & Delaware Railroad Company agreed with the defendant for a valuable consideration paid it by the defendant, to put in the crossing, build the watchman’s house,1 and forever keep the same in repair and maintain the Avatchman at the crossing at its OAvn expense, and without cost or expense to the defendant, and that it Avas in pursuance of this agreement the expenditure mentioned in the petition was made. Looking to the Avhole answer, its proper construction and effect is, that because of the facts so stated it is not liable or indebted upon the cause of action set up in the petition. No material allegation of fact in the petition is controverted by the answer, but the liability and indebtedness therein charged against the defendant are sought to be avoided on the ground that the plaintiff had already been compensated therefor under the agreement referred to. This is an affirmative defense, which, if not controverted by reply, should be taken as true, and either so admitted or established by proof would constitute a complete bar to the action. The effect of the reply denying the allegations of the answer, therefore, was to put the defendant upon proof of the agreement alleged; and as no evidence was given on the trial of the action, but the case was submitted upon the pleadings, the answer availed the defendant nothing, leaving the petition of the plaintiff uncontroverted. Practically therefore the case was submitted to the court as upon default or demurrer to the petition.

Adopting this view of the pleadings, the plaintiff in error contends that judgment should not have been rendered against it upon the case made in the petition:

1. ' Because it appears that the Baltimore & Ohio Railroad Company was not the owner of the railroad crossed by the Cleveland, Mt. Vernon and Delaware Railroad, but was a lessee thereof only; and,

2. It does not appear that the defendant either requested the plaintiff or the company of whose road he is receiver to incur the expenditure, or promised to pay its proportion of such expense.

I. It is conceded by the plaintiff that his light to maintain the action depends largely, if not solely, upon section 3333 of the Revised Statutes, and the construction to be given to it. It reads as follows:

“ Sec. 3333. When the tracks of two railroads cross each other, or in any way connect, at a common grade, the crossing shall be made and kept in repair, and watchmen maintained thereat, at the joint expense of the companies owning the tracks; all trains or engines passing over such tracks shall come to a full stop not nearer than two hundred feet nor further than eight hundred feet from the crossing, and shall not cross until signalled so to do by tbe watchman, nor until the way is clear; and when two passenger or freight trains approach the crossing at the same time, the train on the road first built shall have precedence, if the tracks are both main tracks over which all passengers and freights on the roads are transported; but if only one track is such main track, and the other is a side or depot track, the train on the main track shall take precedence ; and if one of the trains is a passenger train and the other a freight train, the former shall take precedence; and regular trains on time shall take precedence over trains of the same grade not on time; and engines with cars attached, not on time, shall take precedence of engines without cars attached, not on time.”

In the argument it is contended the ownership of the Cleveland, Mt. Vernon & Delaware road is not properly stated in the petition. But this sufficiently appears, for it is avered that the corporation was created and organized under that name, and that it built the road and operated it until the receiver was appointed in 1880., This point is not much relied on'by the counsel for plaintiff in error.

The real contention is, that the statute applies only to railroad companies owning the tracks which cross each other or connect at a common grade, and companies operating roads as lessees are not owners. The terms “owner” and “owning” depend somewhat for their signification xxpon the connection in which they are used. “ To own” is defined “ to hold as property; to have a legal or rightful title to; to have; to possess,” andan “owner” is “one xvho owns; a rightfxxl proprietor.” An owner is not necessarily one owning the fee simple, or one having in the property the highest estate it will admit of. One having a lesser estate may be an owner, and indeed, thei’e may be different estates in the same property vested in different persons and each be an owner thereof. In the construction of statutes, to ascertain the proper meaning of sxxch terms, regal’d must be had to their various provisions, and sxich effect given them as these provisions clearly indicate they were intended to have, and as will render the statute operative. Thus, xxnder the mechanic’s lien statute of March 11,1843, (41 Ohio L. 66), which provided “ that any person who shall perform labor or furnish material for constructing or repairing any building * * by virtue of a contract or agreement with the owner shall have a lien * * upon such building * * and the lot of land upon which the same shall stand,” it was held that the word owner ” is not limited in its meaning to an owner of the fee, but includes also an owner of a leasehold estate. Choteau v. Thompson, 2 Ohio St. 114; Dutro v. Wilson, 4 Ohio St. 101.

In Gilligan v. The Board of Alderman, 11 R. I. 258 it is held that “ a tenant for life or years, or from year to year, is an owner,” within the provisions of the statute which gave “ compensation to abutting owners for damages caused by a change of grade in highways.” And under a statute which provided that “ when any passenger shall die from any injury resulting from or occasioned by any defect or insufficiency in any railroad or part thereof, or in any locomotive or car, the corporation which owns any such 'railroad) locomotive or car at the time such injury is received, resulting from or occasioned by any defect or deficiency above declared, shall forfeit and pay for every passenger so dying the sum of five thousand dollars,” the supreme court of Missouri held that the word “owner” in the act did not mean “ the absolute owner, in whom the absolute right of property is vested,” but means “ the owner for the time being, the corporation for the time being operating, controlling and managing the road, locomotive or car.”

The provisions of section 3333, as well as those of the next two sections, were intended to prevent collisions of trains, and engines, and similar calamities at railroad crossings, often destructive of human life, beside inflicting heavy losses on the companies operating the roads; and they are well calculated for that purpose. They properly require all trains and engines passing on the tracks of either road to come to a full stop before crossing, and not to cross until signalled by the watchman ; and fix the order of precedence among trains and engines at the crossings. The managing agents and superintendents arc rcqiiircd to publish to the employes such rules and regulations as shall secure strict compliance with the provisions of the statutes, and engineers and others in charge of engines who fail to bring them to a stop, or cross before being signalled to do so by the watchman, are subjected to penalties, and they, as well as the companies employing them, are made liable for the damages resulting from such neglect. These, or some such regulations, are indispensable to the actual operation of the roads. They are necessary for the safety of passengers and property transported over those roads, and none the less so to their convenient and successful management by the companies engaged in operating them, and to the protection of their property and employes. The services of the watchman consist in giving the proper signals to approaching trains and engines, and to enable him adequately to perform this service it becomes necessary to build and maintain the watchman’s house. His service pertains wholly to the actual operation of the roads, and inures entirely to the benefit of the companies operating them.

The necessity for keeping the crossings in repair and maintaing watchmen thereat, grows out of the use and operation of the railroads whose tracks cross each other at a common grade, and lessee companies having the possession and control of the roads and operating them as such, receive all the advantages and security resulting from safe crossings, and the services of the watchman, as fully in all respects as companies that are the absolute owners thereof, could if they were operating them, and it would appear but reasonable, that while operating the roads they should receive the benefits subject to the burden of their expense as provided by the statute ; and we are of the opinion that such lessees are companies owning the tracks ” of the roads operated by them, in the sense in which that phrase is used in the statute.

II. It is further contended that the petition fails to state a right of action against the defendant, because it does not show the defendant requested the expenditure, for a portion of which it was sued, or that it promised to pay any part of it. The statute, it is claimed, does not authorize one company to make all the expenditure rendered necessary to comply with its provisions, and sue the other for half or any part of the samo. And there being no express agreement alleged nor any request from the defendant or subsequent promise or ratification by it, from which one might be implied by law, the case, it is urged, falls within that class of voluntary outlays of money which give no right of action. Generally where one person voluntarily pays money for another, under such circumstances that the other is not at liberty to accept or reject the advantage of it, but is obliged to accept it, his acceptance, of what he was not at liberty to reject, is no evidence of ratification or adoption, and raises no implied promise to pay. This rule has been applied to tenants in common, where repairs or improvements of the common property have been made by one tenant without the consent of the other, and it is insisted the railroads in question were tenants in common, and to be governed by that rule. In the cases where the rule stated is enforced it will be found that it was entirely optional with the tenant making the expenditure, whether he would incur it or not. That he might, or not as he chose ; and there was no duty resting upon him to do so, either by contract, or arising from his relation to the co-tenant. In other words the expenditure was purely voluntary, and this lays at the foundation of the rule. But we apprehend the rule is inapplicable to a case like this, where the two companies were under a joint obligation to perform a lawful duty involving the expenditure of money, and one in performance of the common duty, discharged the whole obligation. It cannot, in such case, be said the payment is wholly voluntary. The rule is as well established as the one already refered to, that where two or more are under a joint obligation and one discharges the whole, he shall have contribution from the others. Usually this obligation is created by contract, but it can make no difference in principle whether it be by contract-or operation of law, so long as the obligation is joint and not unlawful.

“ The doctrine of contribution rests upon the broad principle of justice, that whore one has discharged a debt or obligation which others were equally bound with him to discharge, and thus removed a common burden, the others who have received a benefit ought in conscience to refund to him a rateadle proportion. It depends rather upon principles of equity than upon contract. * * * From the equitable obligation the law implies a contract, since all who have become jointly liable may reasonably be considered as mutually contracting among themselves with reference to the duty in conscience.” 2 Wait’s Actions & Def. p. 288, and cases cited. In Bishop on Contracts, section 238, it is said, “ when a duty is cast upon one by statute, or by equity and good conscience (the standard whereof is to be be found in the books of the law rather than in those on moral science) or in any way by the law, whether statutory or common, or when one has been benefited by another who was discharging such duty * * the law creates a promise from him to do the thing or pay for the benefit.”

And again, in sections 204,205, the same author says : “ The law, by placing its command in whatever form upon one to do a thing for the benefit of another or the state, creates the promise from the former to the latter to do it; as for example in the words of Blackstone whatever the laws order any one to pay, that becomes instantly a debt, which he hath beforehand contracted to discharge.’ Thus when a statute imposes on one a duty the law creates a promise from him to the party to be benefitted thereby to perform it.” The application is obvious. A joint duty is by statute imposed upon railroad' companies, whose roads cross at grade, to keep such crossings in repair, and maintain watchmen thereat, at their joint expense. The obligation is equally binding upon both companies, and neither can with impunity omit the performance of the duty or ignore the obligation. When, therefore, one performs the whole duty and discharges the entire obligation resting upon both, it can with no propriety be said to be a mere voluntary act. One purpose of the statute undoubtedly was to promote the safety of people who travel over the roads, and the security of the property carried over them; and in this respect the duty of the companies under it, is to the state and its citizens. But while this may have been the principal object of the statute, it also fixes the legal rights of the companies as between themselves and imposes duties upon each to the other. These rights and duties pertain to the use of the common crossing, and among the duties, both to the state and toward each other, are those of keeping the crossing in repair and maintaining watchmen at their joint expense. Either may therefore lawfully do whatever is necessary to their performance. Applying the principle stated by Bishop on Contracts cited supra, the law’s command created the joint promise of the companies to the state, and the several promise of each to the other to perform the duties prescribed by the statute. In this sense the obligation of the companies becomes one of contract, and one of them having discharged the whole obligation, and the other no part of it, though receiving the full benefit, there is no reason why it should not, upon the principle already stated, be entitled to reimbursement from the latter for its share of the common burden borne by the former.

The case of Middleborough v. Taunton, 2 Cush. 406, relied on by counsel for plaintiff in error, is not inconsistent with the conclusion announced; but, as we understand the case, is in harmony with it. In that case it appeared that the town of Middleborough was indicted for neglecting to repair one of its highways. It confessed the indictment and was fined. The court appropriated the fine to the repair of the higway and appointed an agent to superintend its application. The plaintiff alleged that the highway was upon the dividing line between it and the town of Taunton and the duty of repairing the same was equally incumbent on both towns. The dispute in the case was whether there was a common obligation on both towns to repair the highway. The defendant contended the whole of it was within the town of Middleborough, or if not, the center of the highway was the dividing line, and each town was bound to keep in repair such highways only as were within their respective limits. The trial court ruled that the whole of the way.was within Middleborough, and the plaintiff became non-suit, subject to the opinion of the whole court. It does not appear to have been questioned that if to both towns belonged the joint or common duty tore-pair the highway, the plaintiff should have recovered. But since that was not the case the judgment was affirmed.

Shaw, C. J., in the opinion says:

But it is said that towns are by law (Rev. Stats. c. 25, §1), obliged to repair highways; and it is certainly true, that all highways within the bounds of any town ’ are to be kept in repair at the expense of such town. If towns repair beyond their bounds without an actual request, it is a voluntary act done in pursuance of no obligation or duty, and money laid out for such purpose is not expended at the implied request of the town subject to the duty of such repairs * * *. It seems to us, therefore, that the case of plaintiff falls within this dilemma. If the road was wholly in Middleborough the plaintiffs have merely performed their own duty and paid their own debt. If one-half of it, only, was in Middleborough, the other was in another town and county * and the plaintiffs, if they have laid out money to repair it, have done so in pursuance of no actual request or of any common duty or obligation constituting a request in law ; and, of course, that an action for money paid will not lie.”

It would seem to follow from the reasoning of the learned chief justice, that if the fiioney had been expended in the discharge of a common obligation belonging to both towns to repair the way, the action would have lain.

The further claim is made by the plaintiff in error that, while the statute provides that the expense of keeping the crossing in repair and maintaining watchmen shall be borne by the companies jointly, it is silent in regard to the proportion to be borne by each; and as one company may require the watchman’s services many times more than the other, the expenses should be apportioned accordingly. "Whether in such case the expenses should be apportioned on the basis indicated, or upon any state of facts an unequal division could under the statute be made, we need not decide. Such circumstances of inequality of benefits are not shown, nor does any other reason appear, making an equal division of the burden unjust. If any such existed the defendant should have made it to appear.

The correct rule on this subject is clearly stated in Bishop on Contracts, sec. 216, as follows:

“When persons are under equal obligations to do a thing, not violative of law, and one of them does it, if there is no circumstance rendering the equities between them otherwise than equal, and no express agreement, the doer is entitled, under a promise which the law creates, to recover such sums of his several companions as shall leave the burden equal. This is the familiar rule as between sureties and other joint promisors, where one has discharged more than his proportion of a debt, and it applies also in other like cases.”

We think the right of the plaintiff to recover upon tbe case made in his petition is sustained by sound reason and sanctioned by authority, and the judgment recovered by him should be affirmed.

Judgment affirmed.  