[After stating the facts as above.]—The question raised by this appeal is whether or not the action is upon a sealed instrument, and so amenable to the twenty year limitation (Code Civ. Pro. § 381).
After extended examination I fail to see upon what the action is based save the covenant to bear one half the losses and pay a like proportion of the expenses. The defendant is alleged to have broken that covenant by not paying his quota, and, therefore, to be liable to the plaintiff who has paid his share,'in addition to his own. The conclusion of the learned justice below that there was an absence of any covenant in the agreement whereby one partner was to pay the other for any amount paid in excess of one half, and, therefore, the action was not brought upon the indenture, seems tO'ine an over refined distinction.
The defendant certainly agreed to pay one half the losses and expenses, has failed to do so, and plaintiff, under his partnership liability to third persons, has paid the whole. The basis of this action is assuredlj* the defendant’s covenant to pay one half, and its breach. The illustration of coobligors on a bond under seal where one pays the whole sum is not analogous. The right to contribution in such case results from a principle of equity jurisprudence, not contract express or implied (1 Story’s Equity Jurisprudence, 12th ed. § 493; Aspinwall v. Sacchi, 57 N. Y. 331). If the bond contained a covenant between the co-obligors to pay one half or other proportion of the penalty, there would be no need to rely upon the equitable principle, and an action for contribution would necessarily be founded on the covenant.
The remarks of Butler, J, in Foster v. Allanson (2 T. R. 779) and in the note referring to Moravia v. Levy, while not directly pertinent, give strength to these views. The parties were partners by indenture, and stated the accounts, including items not included in the partnership business. *258The defendant promised to pay the balance against him. The action was assumpsit, the learned judge saying in eacli case that the action would lie because of the promise, but without the promise the action would have been on the covenant (Casey v. Brush, 2 Caines 293).
The case of Peters v. Delaplaine (49 N. Y. 362) does not bear upon the point. The court there held that an action for specific performance involved considerations for the court, outside the provisions of the contract, and no difference resulted from the contract being under seal or without. Facts disconnected with the instrument whereof performance is sought, such as laches, material change in the condition of the parties, and other surroundings, influenced the discretion of the court to grant or deny the relief, and therefore the action was not brought upon the contract.
The case of Knox v. Gye (L. R. 5 H. L. 656), and Noyes v. Crawley (L. R. 10 Ch. Div. 31) depended upon the statute limiting an action of account to six years; there is no similar provision in our law.
The judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.
J. F. Daly and Van Hoesen, JJ., concurred.
Judgment reversed and new trial ordered, with costs to appellant to abide event.