4 Watts 31 | Pa. | 1835
The opinion of the Court was delivered by
—It is certainly a rule too well established now to be questioned, that where any one or more of those, who are co-sureties, have had to pay, as such, the debt of their principal, or any part thereof, and he is unable to reimburse it, the loss arising therefrom must be borne equally by all of them. Hence has arisen the right to contribution. This right has been considered as depending rather upon a principle of equity than upon contract; but it may well be considered as resting alike on both for its foundation ; for although, generally, there is no express agreement entered into between joint sureties, yet from the uniform and almost universal understanding which seems to pervade the whole community, that from the circumstance alone of their agreeing to be, and becoming accordingly co-sureties of the principal, they mutually become bound to each other to divide and equalize any loss that may arise therefrom to either or any of them, it may with great propriety be said that, there is at least an implied contract. Deering v. Winchelsea, 2 Bos. & Pull. 270; Craythorne v. Swinburne, 14 Ves. 160. This liability between sureties to contribution, in case of loss through the inability of their principal to pay, being known to them at the time of their becoming sureties, may well be considered a great, if not the main inducement, in many instances, to their becoming such. Take for example the present case: Bell might have been unwilling to have become surety alone for Oliver for the payment of the 2000 dollars, although in conjunction with Agnew, who was good, he was willing to encounter the risk; because whatever the loss might be, he at most would only have to bear the one half of it ultimately. And in the absence of any agreement to the contrary, it necessarily follows, from the very nature of the contract, as well as the principle
Judgment affirmed.