Sec 766

We have already noticed instances in which the liability of co-sureties and co-guarantors to contribute has been held to be limited by special agreement.2 The right to contribution is subject to such limitations; and each surety may by the common contract fix the amount of his liability.3 A surety may also limit the particular parties for whom he is to be bound.4 A party, also, who becomes surety to oblige another cannot be liable to such other for contribution.5 It is not until the surety pays in excess of his share that his claim against his co-surety originates.6 Contribution, also, may be limited by agreement between joint debtors contracting or extinguishing particular indebtedness.7 But although the survivor of one of several co-debtors may be exclusively liable to the creditor, he may come down on the estates of his co-debtors for contribution; and the same duty of contribution exists as when all the parties are living and one is compelled to pay the entire debt.8 Individual partners, also, when compelled to pay the partnership debt, may obtain contribution according to the proportion established by the partnership articles,9 though the rules of technical contributionship do not in such cases apply.10 - It is not necessary that the parties should have signed the same contract; it is enough if they were jointly responsible for the same debt, either as co-principals or co-sureties.1

Contribution limited by contract between parties.

1 Supra, sec 354; Betts V. Gibbons, 2 A. & E. 57; Adamson V. Jarvis, 4 Bing. 66; Bailey V. Bussing, 28 Conn. 455.

2 Supra, sec 756 et seq.; and see Cray-thorne V. Swinburne, 14 Ves. 160.

3 1 Story's Eq. Jur. 12th ed. sec 495 et seq.; Pendlebury V. Walker, 4 Y. & C. 424.

4 Harris V. Warner, 13 Wend. 400; Story's Eq. Jur. 12th ed. sec 498.

5 Turner V. Davies, 2 Esp. 478.

6 Davies V. Humphreys, 6 M. & (J. 153; supra, sec 758.

7 Turner V. Davies, 2 Esp. 479; Thomas V. Cook, 8 B. & C. 728; Harris V. Warner, 13 Wend. 400.

8 Supra, sec 765; Prior V. Hembrow,.

8 M. & W. 889; Haughton V. Bayley,.

9 Ired. L. 337; and cases cited supra, sec 765.

9 Infra, sec 767; Beresford V. Browning, L. R. 1 C. D. 30.

10 Pearson V. Skelton, 1 M. & W. 504; Sadler V. Nixon, 5 B. & Ad. 936.

Sec 767

The principles which have just been stated apply to payments by directors of an association who have authority to contract debts for the association and who seek contribution from fellow-members. They may be personally responsible; but they are entitled to be reimbursed by those whom they represent.2 This applies a fortiori to cases where there is an express contract of suretyship.3 - So far as concerns partners, the proper mode of obtaining contribution is by proceedings in equity, by which a balance can be properly struck and the question of actual indebtedness determined on a full survey of the accounts.4