obligees in an injunction undertaking, although their interests were entirely separate, and no joint claim for damages existed, may unite in an action upon it; but in another similar case, where the action was joint in form, the recovery was limited to the damages suffered by the plaintiffs jointly, and they were not permitted to show what each had separately sustained.2 In an action on a penal bond running to several persons jointly, the common-law rule required all the obligees to be made plaintiffs, although the condition was to perform distinct acts for the benefit of the obligees severally.3 When a deed of conveyance

or against the remaining parties, may be enforced without bringing the representative or successor of the deceased party into the case."]

1 Loomis v. Brown, 16 Barb. 325. See opinion of Gridley J. The decision was not placed upon the ground that the plaintiffs' rights were joint. It was considered that the code permitted a union of plaintiffs in legal actions, which was not possible at the common law. ["A contract entered into and performed jointly by two or more persons, the compensation for the performance of which is separate and distinct as to each of such persons, may be sued upon separately by each of them, to recover the amount due to him or the damages sustained by him:" Curry v. Railway Co. (1897), 58 Kan. 6, 48 Pac. 579. See, to the same effect, McIntosh v. Zaring (1897), 150 Ind. 301, 49 N. E. 164. In the enforcement of a joint contract all must join: Slaughter v. Davenport (1899), 151 Mo. 26, 51 S. W.

471.

Where a contract is made by a carrier with a funeral party jointly to hold a train for them, each member of the party has a separate cause of action for the breach of the contract: Southern Ry. Co. v. Marshall (1901), 111 Ky. 560, 64 S. W. 418, following Baughman v. Railroad Co., 94 Ky.

150.

In a joint action by several plaintiffs, if the evidence shows that at least part of them cannot recover, a verdict for the defendant must result: Medlock v. Merritt (1897), 102 Ga. 212, 29 S. E. 185.]

2 Fowler v. Frisbie, 37 Cal. 34. A number of persons were in possession of land, not jointly, nor in common, but each

possessing and cultivating a separate parcel of the whole. An action was brought to recover the entire tract, and, by the provisions of the California statute referred to in a preceding paragraph, all these occupants were made defendants. An injunction was granted restraining them all from interfering, etc. with the crops, and the ordinary undertaking was given to them. The persons thus enjoined bring this action on the undertaking; and the rule stated in the text was expressly laid down by the court. It would be difficult to reconcile these two cases.

8 Pearce v. Hitchcock, 2 N. Y. 388, per Jewett C. J. See also Koeniger v. Creed, 58 Ind. 554; Thomas v. Irwin, 90 Ind. 557; McLeod v. Scott, 38 Ark. 72. See, however, Sprague v. Wells, 47 Minn. 504; Alexander v. Jacoby, 23 Ohio St. 358, 383. Vandermulen v. Vandermulen, 108 N. Y. 195, 204, was an action on a covenant running to several persons jointly, conditioned to pay distinct amounts for the benefit of the covenantees severally. It was held that a separate action was maintainable by each of the covenantees; and, strangely enough, Pearce v. Hitchcock was cited as authority for this ruling. The learned judge appears to have overlooked the fact that the actual decision in Pearce v. Hitchcock, which, contrary to the common-law rule there stated, allowed separate actions by the obligees, was based entirely on the statute relating to attachment bonds. [Where an attachment bond is made to two jointly, both are necessary parties to an action for the full amount of the bond: King v. Kehoe (1894), 91 Ia. 91, 58 N. W. 1071.]

of land is given to two or more grantees, the implied covenants of title, if there be any, are joint, and give only a joint right of action, so that one of the grantees cannot sue alone for a breach.1 This is a reaffirmance of the rule applicable to the same circumstances under the common law.2

§ 144. 227. Same Subject. Illustrations. It has been said, in a decision made since the code, that in an action, whether legal or equitable, by a firm, all the partners, even those that are dormant, must unite as plaintiffs; but this case can hardly be

regarded as correct, for it was well settled at the common law
that dormant partners need not be joined, and it does not seem
that anything in the code has changed the rule in this particular.
When eleven officers, harbor masters, all engaged in the same
duties, and each entitled to an equal share, one-eleventh of the
total fees, made an agreement by which one of them undertook
to collect all the fees, and to account for and pay over to the
other ten their portions of the same, it was held that all of the
ten must unite in an action brought against the eleventh to
recover from him the amounts due to them which he had re-
ceived; one could not sue alone.1 Persons may sometimes be
united as plaintiffs in an action upon a written contract, even
though they are not parties thereto, and the terms of the
ment make no direct reference to them, if they, notwithstanding,
have an actual interest jointly with the ostensible parties in the
subject-matter of the contract, and in the cause of action arising
upon it. The authorities of a county appropriated $117,600 to
procure volunteers to fill the quota of the county, and ordered
$300 to be paid as bounty to each volunteer out of this fund.
Eighty-six persons, who had already enlisted in the military
service, agreed with the county officials that, in consideration
of being paid said bounty, they would form a part of its quota,
and they were thereupon actually enrolled in and credited to the

suit, on the ground that one partner could not maintain an action to enforce a part nership demand, which motion was overruled. On appeal the ruling was approved. The court said: "We are of opinion, following the incontestable trend of authority, that the absence as parties of some of the partners from a complaint by one or more of them on a partnership demand does not, speaking strictly, affect the merits, and in order to be considered must be pleaded by the defendant. The motion for non-suit was therefore properly denied." Cases are cited from New York, Minnesota and Missouri.

agree

ship name, under § 5011, R. S., and one
of the partners dies while it is pending,
the action cannot go on in the name of
the partnership, even under order of the
court, for it has ceased to exist, and the
action must be revived and proceed in
the name of the representative or successor
of the firm, and the court held further, in
the same case, that where a suit is brought
in the partnership name, an averment as to
who the partners are is mere surplusage.
Citing Winters v. Means, 50 Neb. 209, aud
Dimond v. Bank, 70 Minn. 298.]

1 Dean v. Chamberlin, Duer, 691. The complaint, stating these facts, and As to actions between partners, see alleging that defendant had refused to § *104, ante.

In some states the statute permits part nerships to sue in the firm name. See § 121, ante. The Supreme Court of Ohio, in Phoenix Ins. Co. v. Carnahan (1900), 63 O. St. 258, 58 N. E. 805, held that where a suit is commenced in the partner

account for and pay over to the single
plaintiff his share, was held bad on
demurrer; all should have joined as
plaintiffs.

2 Rutledge v. Corbin, 10 Ohio St. 478.
See the facts and opinion, supra, § *#*202.
Moore v. Jackson, 35 Ind. 360.

number of volunteers required from the county. The bounty not being paid, the entire eighty-six united in an action demanding judgment for the total amount of their bounties, $25,800, and the action was held to be properly brought.1

$ 145. * 228. Criticism of Cases holding that a Joint Promisee cannot be made a Defendant. The common-law theory of joint right, growing out of contract, equally with the joint right arising from the ownership of chattels, has been carried by certain cases so far that manifest injustice has been done, and the enforcement of conceded rights has been defeated, in order that the courts should not depart from an arbitrary and technical rule. These cases have held that, where a contract is made by or with two or more on the one part, so that a joint right of action is held by them, the only possible action is one brought by all, if living; that one of them cannot sue on the contract making his co-contractor a defendant, with proper averments in the pleading, whether he seeks to recover the whole amount due, or only his own individual interest therein, and though the co-contractor refuses to join in the suit for any reason, even if the latter has been paid his share. I have already discussed this topic at large, and fully expressed my opinion upon it.3 The decisions last mentioned, and the rule which they approve, are directly opposed to the letter of the codes, which makes no restriction to equitable

1 Young v. Franklin Cy. Com'rs, 25 Ind. 295, 299. Each plaintiff was only interested to the extent of $300. There was no joint right in the whole fund. This case therefore illustrates, in a clear manner, the proposition heretofore made,

that the code admits of a joinder of plaintiffs in instances where such joinder was not permitted at the common law.

For a single premium a joint policy of insurance was issued to the owner of a building and to the owner of a stock of goods therein, neither having any interest in the property of the other, except as it arose from their relation as husband and wife, and his occupancy of her store building. It was held, that they properly joined as plaintiffs in an action on the policy: Graves v. Merchants' & B. Ins. Co., 82 Iowa, 637. Property of a married man on the land of his wife was insured in their joint names; it was held that they might

join in an action on the policy. Kausal v. Minn. Farm. Mut. F. Ins. Ass'n, 31 Minn. 17. Sureties who have paid money for their principal may have a joint action for the whole amount; or each may, as before the code, bring a separate action for the amount he has paid: Skiff v. Cross, 21 Iowa, 459. Two persons were allowed to join in suing a common carrier for the value of a chest, their joint property, and of its contents, part of which was the property of one plaintiff, part of the other; a check having been issued to them jointly for the transportation of the chest and its contents: Anderson v. Wabash, etc. Ry. Co., 65 Iowa, 131.

2 Rainey v. Smizer, 28 Mo. 310; Clark v. Cable, 21 Mo. 223; Andrews v. Mokelumne Hill Co., 7 Cal. 330; Ryan v. Riddle, 78 Mo. 521; Hogendobler v. Lyon,

12 Kans. 276.

8 See supra, §*204, and notes, and Hill v. Marsh, 46 Ind. 218.

suits, and are in violent antagonism with the evident intent of the reformed procedure. It was said by the court, in one case, that if an action by one of the creditors was permitted, under the circumstances stated, the debtor would be exposed to subsequent suits and recoveries from the other creditors. This remark shows an entire misapprehension of the meaning and purpose of the statutory provision. It requires the dissenting creditor or cocontractor, who refuses to be a plaintiff, to be made a defendant, for the very purpose of concluding him, by the judgment, from any subsequent prosecution on his own behalf. He is added as a party, and "has his day in court," and this will be a complete bar to a future attempt on his own part, if he should change his mind. No possible injustice could therefore be done to the defendant, and great injustice would necessarily be done to the creditor who desires to enforce his lawful demand, if the utterly arbitrary rule sustained by these and similar cases should be generally approved as the correct interpretation of the codes. The New York Court of Appeals has determined that an action may be maintained by one firm against another firm to recover a sum ascertained to be due, although the two partnerships have a common member who is made a defendant, with proper averments, in the complaint; and the action need not be brought for the equitable relief of an accounting, but for the legal relief of an ordinary money judgment.1

$146. * 229. IV. Legal Actions by Persons having Several Rights Arising from Contract. As the principles have been already stated in the preliminary discussions of this section, it is only

1 Cole v. Reynolds, 18 N. Y. 74. [Willis v. Barron (1898), 143 Mo. 450, 45 S. W. 289. The court said: "At common law partnership contracts were construed to be joint only, not joint and several. As a consequence of this rule in actions by or against partners it was necessary that all the partners should join as plaintiffs or be joined as defendants. A further consequence of this doctrine was that a partner could not sue a firm of which he was a member on a note executed by the firm to himself. . . . All the law writers and all the adjudged cases place the disability of one partner to sue his firm upon its note to him upon the ground that a man cannot contract with himself, and because

it was deemed absurd to permit a party to be both a plaintiff and a defendant in the same action, and for the further reason that until the partnership affairs were adjudged and the balance struck it could not be said one partner was indebted to another.. But since the statute now makes the note the several contract of each member of the firm, and makes each partner liable in solido, the payee is no longer under the necessity of suing himself, and hence so far as the question of parties to pleadings is concerned, he can sue either or all of the other partners without infringing the common-law rule of pleading."