Codification of common law.

- This section is but a codification of the principle of contribution of the common law and is not of statutory origin. Bigby v. Douglas, 123 Ga. 635, 51 S.E. 606 (1905).

Modification of common law.

- Only amendment or modification of the common-law rule governing the amount which each of the cosureties must contribute to the one who has paid more than one's equal share of the indebtedness is found in the last sentence of this section. Higdon v. Bell, 25 Ga. App. 54, 102 S.E. 546 (1920).

Construction with federal provisions.

- As adequate protection pursuant to 11 U.S.C. §§ 361 and 363, the court provided a junior creditor a replacement lien on claims for contribution and subrogation by the debtor against other related debtors after the property on which the junior creditor had a lien was sold. In re Bay Circle Props., 577 Bankr. 587 (Bankr. N.D. Ga. 2017).

Doctrine of contribution is limited to cosureties.

- Doctrine of contribution, as applied to sureties, is limited to cosureties. Snow v. Brown, 100 Ga. 117, 28 S.E. 77 (1897).

No right of contribution between successive sureties.

- A surety upon a guardian's bond, after obtaining the surety's discharge, although liable to the ward for any past default of the guardian, is not liable to a surety of the guardian upon a second bond who has answered for that default in consequence of the surety's own statutory liability upon the second bond. This liability of the second surety is primary, as between the second surety and the first surety, and the second surety has no right of contribution from the first surety. Tittle v. Bennett, 94 Ga. 405, 21 S.E. 62 (1894); Snow v. Brown, 100 Ga. 117, 28 S.E. 77 (1897).

Cosurety is entitled to binding contract requiring contribution.

- Parol agreement of one surety was not sufficient to bind a cosurety as the surety was entitled to a valid, binding contract on which the surety could require contribution. English v. Bank of Ga., 76 Ga. 537 (1886).

Sureties paying debt may sue jointly for contribution on instrument.

- Three of four sureties, who have paid the debt of their principal, may jointly sue their cosurety for contribution founding their action upon the obligation containing the contract of suretyship. Train v. Emerson, 141 Ga. 95, 80 S.E. 554, 49 L.R.A. (n.s.) 950 (1913).

Sureties may sue jointly on implied promise.

- Two or more sureties who have paid the debt of their insolvent principal may jointly sue a cosurety for contribution, even when their action is based upon their right to contribution predicated upon the implied promise springing from the payment of the debt alone and is not based upon notes paid off and transferred to them, when the plaintiff sureties jointly paid the debt, although it was paid by their individual funds. Durden v. Youmans, 37 Ga. App. 182, 139 S.E. 91 (1927).

Action by surety against cosurety on original indebtedness is for contribution.

- There is no authority which allows a cosurety to convert the cosurety's action for contribution into something else merely by finding the cosurety's action on the original evidence of indebtedness. It is still a suit to enforce contribution from cosureties, and the plaintiff is bound by the substantive rules pertaining to contribution. Todd v. Windsor, 118 Ga. App. 805, 165 S.E.2d 438 (1968).

It is not some independent right but the right to contribution which is being enforced, and it is suit on the original evidence of indebtedness by way of subrogation to the creditor's remedy which is allowed to the surety merely as a form of action in aid of the right to contribution from cosureties. Todd v. Windsor, 118 Ga. App. 805, 165 S.E.2d 438 (1968).

Trial court erred in failing to award appellant partner prejudgment interest under O.C.G.A. § 10-7-51, as the judgment was for contribution under O.C.G.A. § 10-7-50 and the law of the case by appellee partner for sums appellant partner paid in excess of that paid by appellee partner since both were equally bound on the same instruments. Murphy v. McCaughey, 262 Ga. App. 570, 586 S.E.2d 16 (2003).

Judgment must be limited to proportion due from each cosurety.

- Since the substantive right and liability being enforced is that of contribution between co-obligors, each is liable only for an equal proportionate share of the debt. This liability is several and not joint, and a joint obligor who has paid the joint obligation is entitled to judgment against each of the co-obligors only for the proportion for which each is liable - judgment should not be entered against any one of them or against all of them jointly for the aggregate amount due from them. Todd v. Windsor, 118 Ga. App. 805, 165 S.E.2d 438 (1968).

When co-obligors have received unequal benefits from the common obligation, the portion of the contribution that each must bear is according to the benefit that each has received, and the presumption that each co-obligor benefited in an equal degree is subject to rebuttal by proof that there was an inequality of benefits received. Steele v. Grot, 232 Ga. App. 847, 503 S.E.2d 92 (1998).

Joint and several judgment for aggregate amount due surety is not authorized.

- There is no authority for the proposition that a surety or other co-obligor, however the surety may have found the surety's action for contribution, may obtain a joint and several judgment against the surety's several cosureties for the aggregate amount due the surety. Todd v. Windsor, 118 Ga. App. 805, 165 S.E.2d 438 (1968).

In case of insolvency of one surety, solvent sureties bear burden equally.

- Rule in equity in case of insolvency of a surety is that the solvent sureties bear equally the burden of payment. Todd v. Windsor, 118 Ga. App. 805, 165 S.E.2d 438 (1968).

Time for bringing action depends on basis therefor.

- Under this section, the surety entitled to contribution may sue the cosureties upon the written evidence of indebtedness (in which case the period of limitation would be that applicable to instruments of its class) or upon the implied contract raised by law in favor of one surety against the cosureties for contribution (in which instance the period of limitation would be that of an implied promise). Bigby v. Douglas, 123 Ga. 635, 51 S.E. 606 (1905); Reed v. Liberty Nat'l Bank & Trust Co., 44 Ga. App. 544, 162 S.E. 154 (1932). (See also O.C.G.A. §§ 9-3-23 to9-3-25).

Sureties founding their action for contribution upon the obligation containing the contract of suretyship will have the same time within which to bring the action as the creditor would have on the same instrument. Train v. Emerson, 141 Ga. 95, 80 S.E. 554, 49 L.R.A. (n.s.) 950 (1913).

Accommodation party is not surety now without express agreement.

- Since the enactment in Georgia of the former Negotiable Instruments Law in 1924 (see now O.C.G.A. §§ 11-3-101 through11-3-805), an accommodation party is no longer a surety for the party accommodated as a legal consequence of the accommodation undertaking. The rule now is that the fact of suretyship must be written in the endorsement or there must be an express agreement that the accommodation party is signing as surety. Bell v. Kleinberg, 102 Ga. 623, 117 S.E.2d 262 (1960).

Accommodation party who is not surety may only sue on implied promise.

- Since the enactment in Georgia of the former Negotiable Instruments Law in 1924 (see O.C.G.A. §§ 11-3-101 through11-3-805), the ruling in Hull v. Myers, 90 Ga. 674, 16 S.E. 653 (1893), to the effect that an action by an accommodation party against another party could be brought on the instrument as well as on the basis of an implied contract to reimburse, has not been the law. Bell v. Kleinberg, 102 Ga. App. 623, 117 S.E.2d 262 (1960) (four-year statute of limitations as to implied contracts applies and Reed v. Liberty Nat'l Bank & Trust Co., 44 Ga. App. 544, 162 S.E. 154 (1932), will not be followed).

Signatures on separate agreements held not consequential.

- Fact that corporate officers were not signatories to the same guaranty agreement but rather signed separate agreements, each of which contained language providing that the agreement inured only to the benefit of a bank and the undersigned, was of no consequence. Because both parties were sureties for the obligations of the corporation, and one of the parties paid the corporate obligation to the bank, that party was entitled to contribution from the other party. Dever v. Lee, 188 Ga. App. 483, 373 S.E.2d 224, cert. denied, 188 Ga. App. 911, 373 S.E.2d 224 (1988).

Statute of limitations.

- Four-year statute of limitations is applicable to claims for the right of contribution filed by one co-maker of a debt against another pursuant to O.C.G.A. § 10-7-50; thus, because a plaintiff filed a claim for contribution some four years and 10 months after the plaintiff paid the debt for which the plaintiff sought contribution from the defendants, the claim was time-barred. Gray v. Currie, F. Supp. 2d (N.D. Ga. Nov. 21, 2005).

Interest award reversed.

- Award of interest for a client against an attorney from the date that the client satisfied an underlying judgment against the client, the client's son, and the attorney had no legal basis and was reversed; it had been established that the client, the client's son, and the attorney were joint tortfeasors and while O.C.G.A. § 10-7-51 authorized the award of interest running from the date of a co-surety's payment of a joint obligation, it applied to contribution actions arising from joint instruments executed by the sureties, not to joint tortfeasors. The issue was not controlled by O.C.G.A. § 9-13-78 as it provided a method of enforcing contribution from a joint defendant and the statute did not purport to control an award of interest; O.C.G.A. § 7-4-12 provided that all money judgments bore post-judgment interest from the date of entry. Gerschick v. Pounds, 281 Ga. App. 531, 636 S.E.2d 663 (2006), cert. denied, No. S07C0191, 2007 Ga. LEXIS 95 (Ga. 2007).

Cited in Nixon v. Nixon, 196 Ga. 148, 26 S.E.2d 711 (1943); Holland v. Holland Heating & Air Conditioning, 208 Ga. App. 794, 432 S.E.2d 238 (1993).

Am. Jur. 2d.

- 74 Am. Jur. 2d, Suretyship, § 147 et seq.

C.J.S.

- 72 C.J.S., Principal and Surety, § 226 et seq.

ALR.

- Exhaustion of remedies against, or insolvency of, principal as condition of enforcing contribution between coguarantors or cosureties, 29 A.L.R. 273.

Right to contribution or indemnity of executor, administrator, guardian, testamentary trustee, or sureties against a cofiduciary or sureties, in respect of losses or defaults for which the fiduciaries are answerable, 66 A.L.R. 1147.

Right of surety or guarantor who pays judgment to preservation thereof as against his cosureties or coguarantors, 71 A.L.R. 300.

Rights and liabilities as between sureties on successive bonds given by executor, administrator, trustee, or guardian, 76 A.L.R. 904.

Transmission of fund from ancillary to domiciliary jurisdiction, or liability of sureties on bond given in the latter jurisdiction, as affecting liability of sureties on bond given in the former jurisdiction, 78 A.L.R. 575.

Joinder in one action of sureties on different bonds relating to same matter, 106 A.L.R. 90; 137 A.L.R. 1044.

Rights and liabilities as between sureties on successive bonds given in course of litigation, 117 A.L.R. 583.

Right of one cojudgment debtor who pays judgment to be subrogated thereto as against the other cojudgment debtors, 157 A.L.R. 495.

Right of surety on recognizance or bail bond to indemnity or contribution, 170 A.L.R. 1161.

Limitation by surety of amount of his liability as affecting liability to contribution, 172 A.L.R. 1447.

Apportionment of liability between automobile liability insurers one or more of whose policies provide against any liability if there is other insurance, 46 A.L.R.2d 1163.

Right of guarantor or surety, in order to avoid paying amount in excess of his proportionate share, to compel coguarantors or cosureties to pay their share to creditor, 38 A.L.R.3d 680.