19 Or. 71 | Or. | 1890
delivered the opinion of the court.
The facts disclose that the notes were founded upon one transaction and were given for one debt, but the instruction treats the right of the plaintiff to recover contribution as dependent on the contract, expressed by the notes and subject to the statute of limitations according to the order of their payment. The right of contribution affects only the relations of the joint debtors or sureties between themselves, and is entirely distinct from and independent of the contract with the creditor and cannot be varied by an act of his. The contract is made for the creditor, and - for his benefit, and is intended simply to express the relation between the joint debtors or sureties and the creditor. It depends more upon a principle of equity than upon contract; the fundamental principle being that whenever persons are in equati jure a common liability is a common charge. The justice of the rule is manifest.
It rests upon the broad principle of justice that when one has discharged a debt or obligation which was a common charge for the benefit of all, he has a right to call upon his co-debtors for contribution. Originally it was enforceable only in courts of equity, but in later days courts of law have assumed jurisdiction on the ground of an implied promise on the part of each joint debtor or surety to contribute his share to make up the loss. 4 Am. and En. Ency. of Law p. 1, et seq. The remedy in equity in many respects is superior, being more extensive and more effectual in its operation than a court of law. But the theory of an implied contract upon which courts of law assumed jurisdiction, Denio, J., thought “assumed for the purpose of enforcing the equitable principle of contribution and not upon the idea that any such contract actually exists.” Barry v. Ramson, 14 N. Y. 466; so that in a case where contribution on principles of natural justice ought to be enforced, the right to it exists in equity
In Norton v. Coons, 3 Denio, 132, Bronson, C. J., said: “The doctrine of contribution among sureties is founded on general principles of equity and justice. Sureties are in equati jure ahd must bear the burden equally. Contribution may be enforced whether they were bound jointly or severally; by the same or by different instruments; and although the party who sues did not know at the time he became a surety that the defendant was also a surety. The order of time in which they became bohnd is not a material inquiry. The only question is, whether they were ifi fact sureties for a principal debtor and in relation to one and the same transaction. Courts of law have borrowed their jurisdiction on this subject from courts of equity, and along with it they have taken the maxim that equality is equity.” So that it may be said in regard to the right of contribution that it does not matter whether the parties are jointly and severally bound, or only severally, nor whether they are bound by the same or separate instruments, or whether they knew of each other’s engagements or not, nor whether they are liable in the same or different amounts, provided their obligation be assumed in respect to one and the same transaction. Chaffee v. Jones, 19 Pick. 260; Aspenwall v.
It is clear, then, that the doctrine of contribution does not depend upon contract, but is bottomed and founded on principles of natural justice. The contract upon which they are co-debtors, or sureties, only expresses the relation between them and their creditor, and is entirely distinct from the right of contribution, which exists between themselves. The notes were made to R. M. Wade & Co. and expressed the relation between them as joint debtors and creditors, but they were made for the benefit of the creditor, and represented but one debt. The right of contribution to the co-debtor paying more than his share does not rest upon the notes, but on the broad principles of justice, that when he discharged the debt for which they were equally bound with him to discharge, and removed thereby a common burden, it is but just that they should refund to him a ratable proportion. The facts concede that it was agreed between the plaintiff Durbin and his co -debtor, the defendants, that he was to pay one-half of the debt, and as between them his payment has reference to it, and not to the contract or notes, and his right to contribution arises as soon as he pays more than his share of such debt. “The right of action for contribution accrues when one has paid more than his proportion of their liability. It is an equity which arises when the relation of co-sureties is entered into and upon which a cause of action accrues when one has paid more than his proportion of the debt for which they were bound.” Camp v. Bostwick, 20 Ohio St. 337; Bonham v. Galloway, 13 Ill. 68; Ponder v. Carter, 12 Ired. 242, and when the plaintiff paid more than his proportion of the debt a cause of action ripened, and that is the time when the statute of limitations begins to run. Mills v. Hyde, 19 Vt. 59; Boardman v. Paige, 11 N. H. 431.
According to the facts, at the time when the plaintiff paid the §203.63 he only paid one-half of the whole debt, and it is indisputable, if the defendants had paid the other half, that the plaintiff would have no right of contribution
We think, therefore, tbe instructions were erroneous statements of tbe law as applicable to tbe facts, and tbe judgment must be reversed and a new trial ordered.
