Printable Format84-3-116. Joint and several liability; contribution. (a) Except as otherwise provided in the instrument, two or more persons who have the same liability on an instrument as makers, drawers, acceptors, endorsers who endorse as joint payees, or anomalous endorsers are jointly and severally liable in the capacity in which they sign.
(b) Except as provided in K.S.A. 84-3-419(e) or by agreement of the affected parties, a party having joint and several liability who pays the instrument is entitled to receive from any party having the same joint and several liability contribution in accordance with applicable law.
(c) Discharge of one party having joint and several liability by a person entitled to enforce the instrument does not affect the right under subsection (b) of a party having the same joint and several liability to receive contribution from the party discharged.
History: L. 1991, ch. 296, § 16; February 1, 1992.
KANSAS COMMENT, 1996
This section is identical to the 1995 Official Text. The provision is derived from the prior provision of 84-3-118(e), with substantial modifications. Historical case and statutory references may be obtained from the 1965 or the 1983 bound Volume 7 of the Kansas Statutes Annotated.
Subsection (a). This subsection provides that all parties who sign in a particular capacity are jointly and severally liable in that capacity unless the instrument provides otherwise. This changes the prior rule in 84-3-414(2) which stated that indorsers were presumed liable in the order in which they signed. That subsection has been repealed. While the rule seemed logical for normal indorsers, it could work a hardship when the indorsers were indorsing for accommodation.
Subsections (b) and (c). If parties are jointly liable, any one who pays is entitled to contribution from the others, unless accommodation (84-3-419(c)) is proved, or unless the parties have contracted otherwise, on or off the instrument. Under prior law, discharge of a party against whom another party had recourse would also discharge the party who had recourse unless special rules were followed. See prior 84-3-606. This was a trap for the unwary, and the provisions adopted in 1990 repealed that rule. The new provision makes any discharge of a prior party by a holder personal so that the rights of any other party with a right of recourse against the discharged party are not affected.
Revisor's Note:
Former section 84-3-116 was repealed by L. 1991, ch. 296, § 111 and the number reassigned to the current text.
CASE ANNOTATIONS
1. Where attorney forged client's endorsement, depository bank and insurer/drawees jointly and severally liable and each entitled to contribution. King v. White, 265 Kan. 627, 631, 643, 962 P.2d 475 (1998).