Taylor v. Reynolds

By the Court : The plaintiff and the defendant’s testator were co-sureties for Preston on a promissory note. The plaintiff paid the amount due on the promissory note, and brought this action against his co-surety for contribution. The defendant, after denying the alleged payment by the plaintiff, avers upon his information and belief that before the making of the note Preston deposited with the plaintiff a large amount of available collateral securities of a value more than the amount of the note, “ the said plaintiff having the full and entire control of the said collateral securities, to dispose of and apply the same to the payment of the said note when the same became due, and that the said plaintiff, as the defendant is informed and believes, still has the said securities, but neglects and refuses to apply or use the same to or towards the payment of the said note, but still retains and holds the possession thereof.” The Court found for the plaintiff upon all the issues except that which is presented by the averments above cited.

The defendant’s points are that the plaintiff cannot recover in this action without averring and proving that Preston is unable to respond to the plaintiff for the amount paid on the note; that the plaintiff neither gave notice of his payment, nor de[688]manded contribution, before bringing the action; and that the Court made no finding upon the issue in respect to the collateral securities held by the plaintiff.

The solution of the first proposition depends upon the question whether the liability of the co-surety to contribution is primary or is contingent, that is to say, conditional upon the liability of the surety, who has paid for the debt, to recover the same from the principal.

Courts of Common Law have for many years exercised unquestioned jurisdiction to compel contribution between sureties, in the absence of positive contract to that effect, on the ground of an implied contract. And in such cases a contract is inferred from the implied knowledge of the principle of contribution by the sureties at the time when they enter into the contract of suretyship. The obligation rests upon the principle of equity— which Courts of Law will enforce—that when two persons are subject to a common burden, it shall be borne equally between them. As was said by Mr. Justice Jackson in Bachelder v. Fiske, 17 Mass. 467: “ Indeed, it is difficult to conceive of a right in one party, founded on the fixed principles of justice, and recognized by the law of the land, which does hot involve a corresponding obligation on the other party, and a legal obligation is a sufficient ground of an implied promise.”