Van Petten v. Richardson

Sherwood C. J.

It was at first denied in the courts of common law, that any right to contribution could be maintained as between co-sureties or co-promisors. Eell’s Law of Guaranty and Suretyship, 295, and cases cited. Courts of equity, however, have from a remote period compelled contribution in such cases. 1 Story Eq. Jur., § 493, and cases cited. The principle on which such right is based, is said tobe this, that all who are in eqxiali jure, must bear the burden equally, and that this is but in couformity to the maxim that “ equality is equity.” Norton v. Coons, 3 Denio 130 ; Moore v. Moore, 4 Hawks 358 . It is elsewhere said that the doctrine of contribution does not ‘ stand upon any notion of mutual contract, express or implied, between the sureties to indemnify each other in proportion (as has been sometimes urged); but it arises from principles of equity, independent of contract.” 1 Story Eq. Jur., § 493, and cases cited. Courts of law have long since adopted the doctrine of contribution, and now allow actions of assumpsit or indebitatus assumpsit to be maintained by one co-surety or *381 co-debtor, for any excess of the common indebtedness which he may have discharged over his proportionate share. 3 Denio., supra; Kemp v. Finden, 12 Mees. & Welsb. 421; Morrison v. Poyntz, 7 Dana 307 ; Bachelder v. Fiske, 17 Mass. 464 ; Mason v. Lord, 20 Pick. 447 ; Fell’s Law of Guaranty and Suretyship, 297.

Courts of law, however, although they borrowed their jurisdiction in regard to contribution from courts of equity, and enforced their newly acquired jurisdiction in accordance with common law forms of action, still felt themselves so hampered in the exercise of their newly found powers, that they refused to allow a surety who paid a debt to recover from his co-surety more than his aliquot or proportional part of the payment thus made; and this was the sole measure of recovery, notwithstanding the insolvency of one or more of the sureties. 1 White’s Lead. Oases in Eq., p. 123, and cases cited. In equity, the rule was far different; there the recovery, in ease of insolvency, was apportioned among all the solvent sureties. 1 Story Eq. Jur., § 496, and cases cited. It would seem quite obvious that courts of law, in adopting the views of equity relative to contribution, should have done so, in their fullest extent, and consequently, when they allowed a recovery based on an equitable right;'they should have made that recovery as broad as the right in which it had its origin, and, therefore, should have afforded a relief as large as could have been afforded, had that relief been sought in that forum which first gave recognition to the right. Mr. Justice Redfield, after adverting to the fact that some of the American courts of law now follow the equitable rule as to apportioning the share of an insolvent surety, among those remaining solvent, says: “ The distinction in the extent of redress between a court of law and a court of equity, in cases where some of the sureties are insolvent, is certainly not based upon any very obvious principle affecting the different jurisdictions. It has more the appearance of an arbitrary rule, and as such may be expected to *382 gradually disappear in the same way most of its kindred have already done.” 1 Story Eq. Jur., § 496 a. And the current of modern authority is in accordance with the views indicated by Mr. Justice Redfield. White’s Lead. Cases in Eq., p. 122 et seq; Harris v. Ferguson, 2 Bailey 397 ; Mills v. Hyde, 19 Vt. 60 ; Strong v. Mitchell, Id. 644. But whatever views may be entertained elsewhere as to the measure of redress which a court of law can afford to a surety suing his co-surety, the matter has been put at rest in our own State. In Dodd v. Winn, 27 Mo. 501 , it was held, under the eighth section of the act respecting sureties, (2 Wag. Stat., 1304,) that if a surety pays more than his due proportion of the original demand, and one of the sureties is insolvent, he may recover in an action at law, in the same manner as under like circumstances in equity, and that the meaning of the words “ his due proportion,” is to be gathered from and governed by the particulars of each case. It will be thus seen that we have adopted in this State the equitable rule as to the measure of recovery in actions like the present. That equitable rule embraces within its purview co-promisors or co-debtors as well as co-sureties, and for like i'easons, as above stated; for the doctrine of contribution is the result of general equity, on the ground of equality of 'burden and benefit, and is equally so among principals as among sureties. 1 Madd. Chancery, 235, 236, and note 2; Fletcher v. Grover, 11 N. H. 369; Boardman v. Paige, Id. 432; Am. Law Reg., vol. 8 (N. S.) p. 455. And the same equitable principle, that of equality of burden, will allow a debtor to recover from his co-debtor whatever the former may have paid in excess of “his due proportion,” not only of the original demand, but of all costs, &c., necessarily incident thereto. 1 White’s Lead. Cases in Eq., p. 121; Wynn v. Brooke, 5 Rawle 106 ; Hayden v. Cabot, 17 Mass. 169 ; Cleveland v. Covington, 3 Strobhart 184. Holding these views, we regard the cause as having been tried on an erroneous theory, and, there *383 fore, reverse the judgment and remand the cause.

All concur.

Reversed.