The obligation of a surety to contribute, like that of the principal to indemnify his surety, was first recognized in equity1 and then adopted by courts of law.2 It is frequently said to be equitable in its nature and to rest upon "general principles of justice,"3 or upon the principle that sureties "are all in aequali jure, and as the law requires equality they shall equally bear the burden." 4 This has been thought to mean that the obligation is really quasi contractual.5 Theoretically, without doubt, it is a proper case for the application of the quasi contractual doctrine under consideration in this chapter, for, in so far as one surety pays more than his aliquot share of the debt, he performs an obligation which in equity and good conscience rests upon his co-surety, and thereby confers a benefit upon the latter which it is unjust for him to retain.
The theory of a quasi contractual foundation, however, directly encounters the accepted rule of equity that a surety, as soon as the creditor's claim against him is established, and without first paying the debt, may bring a bill to compel his cosurety to contribute with him,6 and the rule of both law and equity that if a surety dies after entering into the contract of suretyship but before any payment is made, his estate is liable to the co-surety who subsequently pays the debt.1
(semble) ; Blanchard v. Blanchard, 1908, 61 Misc. Rep. 497; 113 N. Y. Supp. 882; aff. 1909, 133 App. Div. 937; 118 N. Y. Supp. 1095; Graeber v. Sides, 1909, 151 N. C. 596; 66 S. E. 600; Poe v. Dixon, 1899, 60 Oh. St. 124; 54 N. E. 86; 71 Am. St. Rep. 713, (semble); Barney v. Grover, 1856, 28 Vt. 391. But see, contra, Townsend v. Sullivan, 1906, 3 Cal. App. 115; 84 Pac. 435.
1 Offley and Johnson's Case, 1584, 2 Leo. 166; Layer v. Nelson, 1687, 1 Vera. 456.
2 Turner v. Davis, 1796, 2 Esp. 479; Cowell v. Edwards, 1800, 2 Bos. & Pul. 268.
3 Conover p. Hill, 1875, 76 111. 342.
4 Deering v. Earl of Winchelsea, 1787, 2 Bos. & Pul. 270; Weeks v. Parsons, 1900, 176 Mass. 570; 58 N. E. 157; Board of Commrs. v. Dorsett, 1909, 151 N. C. 307; 66 S. E. 132; Fischer v. Gaither, 1898, 32 Or. 161; 51 Pac. 733.
5 See Keener, "Quasi-Contracts," pp. 401, 402.
6 Wolmershausen v. Gullick,  2 Ch 514; Morrison v. Poyntz, 1838, 7 Dana (37 Ky.) 307; 32 Am. Dec. 92. See also Robinson v. Harkin,  2 Ch. 415, (contribution between trustees); Hodgson v. Baldwin, 1872, 65 111. 532.
Some of the cases in support of this last proposition indicate with particular clearness that for the purpose of a remedy at law the obligation is regarded as purely contractual:
Johnson v. Harvey, 1881, 84 N. Y. 363; 38 Am. Rep. 515: Finch, J. (p. 365): " It was held in Bradley v. Burwell (3 Den. 61), that the death of one of two or more sureties did not relieve his estate from the liability to contribute, and the decision was put upon the ground that the law implies a contract between co-sureties to contribute ratably toward discharging any liability which they may incur in behalf of their principal, such contract originating at the time they execute the original undertaking, and that in the case of the death of either this obligation devolves upon his legal representatives, and is like any other contract made by one, in his lifetime, to pay money at a future time, absolutely or contingently, who dies before any breach of the contract."
Chipman v. Morrill, 1862, 20 Cal. 130; Field, C.J. (p. 135): "In support of the first position, the appellant cities various authorities upon the doctrine of contribution as between cosureties, to the effect that such doctrine depends more upon a principle of equity than upon contract. Such is undoubtedly the case as between co-sureties, and the principle is, that where there is a common liability, equality of burthen is equity. Courts of equity, therefore, naturally took jurisdiction of cases of contribution, where one surety had paid more than his just proportion. But the equitable doctrine, in the progress of time, became so well established, that parties were presumed to enter into contracts of suretyship upon its knowledge; and consequently, upon a mutual understanding that if the principle failed, each would be bound to share with the others a proportionate loss. Courts of common law thereupon assumed jurisdiction to enforce contribution between sureties, proceeding on the principle that from their joint undertaking there was an implied promise on the part of each surety to contribute his share, if necessary, to make up the common loss." 1
1 Handley v. Helfin, 1888, 84 Ala. 600; 4 So. 725; Hecht v. Skaggs, 1890, 53 Ark. 291; 13 S. W. 930; 22 Am. St. Rep. 192; Wood v. Leland, 1840, 1 Metc. (Mass.) 387; Johnson v. Harvey, 1881, 84 N. Y. 363 ; 38 Am. Rep. 515; Aiken v. Peay's Extrs., 1850, 5 Strobh. (S. C.) 15; 53 Am. Dee. 684; Pace v. Pace's Admr., 1898, 95 Va. 792 • 30 S. E. 361; 44 L. R. A. 459.
The genuine implied contract theory may be thought to be likewise supported by the rule generally adopted by courts of law, differing from that in equity, as to the measure of contribution - that each surety is liable for a proportionate part of the loss, according to the number of sureties originally bound, whether or not all are alive and solvent at the time the debt is paid.2 As a matter of fact Lord Campbell, in Batard v. Hawes, expressly based this rule upon the contract theory.3 But the true reason for it, as recognized in many of the cases, is that the liability of the sureties being several, "the law cannot, in such complicated cases, do complete justice by one final determination ; and therefore it did not undertake it."4
On the other hand, it seems clear that the obligation cannot logically rest on the notion of a genuine implied contract, since contribution will be enforced under circumstances which conclusively negative the existence of contract, as where two sureties become such by separate instruments and are entire strangers to each other,1 or where they become sureties by the same instrument but at different times.2 In neither of these cases can there be said to be any evidence of an intention to enter into a contribution contract, and moreover, in the latter no consideration can be found to support such a contract, since the one who first becomes surety surrenders no right when the other subsequently assumes the obligation.
1 Accord: Craythorne v. Swinburne, 1807, 14 Ves. Jr. 160; Norton V. Coons, 1851, 6 N. Y. 33.
2 Brown v. Lee, 1827, 6 Barn. & Cres. 689; In re MacDonaghs, 1876, Ir. R. 10 Eq. 269; Moore v. Bruner, 1889, 31 I11. App. 400; Stothoff v. Dunham's Exrs., 1842, 19 N. J. L. 181; Easterly v. Barber, 1876, 66 N. Y. 433; Powell v. Matthis, 1843, 4 Ired. L. (26 N. C.) 83; 40 Am. Dec. 427; Fischer v. Gaither, 1898, 32 Or. 161; 51 Pac. 736; Riley v. Rhea, 1880, 5 Lea (73 Tenn.) 115; Acers v. Curtis, 1887, 68 Tex. 423; 4 S. W. 551. See Sloan v. Gibbes, 1900, 56 S. C. 480; 35 S. E. 408; 76 Am. St. Rep. 559, (equity rule).
3 Batard v. Hawes, 1853, 2 Ell. & Bl. 287, 296. Lord Campbell, C.J.: "If the right of contribution is to be considered as arising merely from the fact of payment being made, so as to relieve a party jointly liable from legal liability, we should have to look to the number of contractors actually liable at law at the time of making the payment which relieved them from liability. But we think that it is not merely the legal liability to the creditor at the time of the payment which we are to regard, but that we must look to the implied engagement of each, to pay his share, arising out of the joint contract when entered into."
4 Rtjffin, C.J., in Powell v. Matthis, 1843, 4 Ired. (26 N. C.) 83, 85; 40 Am. Dec. 427. See also Easterly v. Barber, 1876, 66 N. Y. 433.
In conclusion, it may be said that while the law of contribution between sureties might well have been erected upon the quasi contractual doctrine considered in this chapter, it is difficult to show, in the light of the adjudged cases, that it actually has been built upon that or, indeed, upon any other single doctrine. In equity, as has been said, the obligation is referred to the so-called principle that where there is a common liability the burden should be equal. At common law, the courts have generally regarded it as contractual, although in practice sometimes appearing to confuse contractual with quasi contractual obligation, and at other times, falling back on the somewhat indefinite principle of equity just referred to.