Page images
PDF
EPUB

§ 205. *304. Criticism of General Rule.

Although the interpretation put upon the codes in reference to this particular sub

judgment, and either of them shall die, his estate, executors, and administrators shall be liable for the failure to perform the contract and for the payment of the judgment, to the same extent and in the same manner as if such contract or judgment were joint and several." Burns St., 1901, § 636.

"

Arkansas: Where any of the persons so bound [jointly] are dead, the action may be brought against any or all of the survivors, with the representatives of all or any of the decedents." Sand. & Hills' Dig., § 5634.

Minnesota: "When two or more persons are indebted on any joint contract, or upon a judgment founded on a joint contract, and either of them die, his estate is liable therefor, and the amount thereof may be allowed by the probate court, as if the contract had been joint and several, or as if the judgment had been against him alone." St., 1894, § 4521.

Wisconsin: "When two or more persons shall be indebted on any joint contract or upon a judgment founded upon a contract, and either of them shall die, his estate shall be liable therefor, and the claim may be allowed by the court as if the contract had been joint and several or as if the judgment had been against him alone, and the other parties to such joint contract may be compelled to contribute or to pay the same if they would have been liable to do so upon payment thereof by the deceased." St., 1898, § 3848.

Colorado: All joint obligations and covenants shall hereafter be taken and held to be joint and several obligations and covenants." Mills St., § 2528.

New York: "The estate of a person or party, jointly liable upon contract with others, shall not be discharged by his death, and the court may make an order to bring in the proper representative of the decedent, when it is necessary so to do for the proper disposition of the matter." Code Civ. Pro. § 758. See Potts v. Dounce (1903), 173 N. Y. 335, 66 N. E. 4, quoted at length in note to § 302, for a judicial interpretation of this statute.

*

South Dakota: "Where one of two or

more plaintiffs, or one of two or more defendants, in an action, dies, and only part of the cause of action, or of several distinct causes of action, survives to or against the others, the action may proceed without bringing in the person who has succeeded to the rights of the deceased party; and the judgment shall not affect him, or his interest in the subject of the action. But the court may order such successor of a deceased party, or any person who claims to be such successor, to be brought in as a party, either plaintiff or defendant, whenever it appears proper to do so, upon his own application or upon the application of any party to the action, and, if necessary, that supplemental pleadings be put in." Ann. St., 1901, § 6084.]

Burgoyne v. Ohio L. Ins. & T. Co., 5 Ohio St. 586, 587. This was an action against the surviving makers and the administrator of a deceased maker of a

promissory note. Ranney C. J., after stating the original common-law rule, and quoting a statute of Ohio (Swann's R. S. p. 378) as follows, — "When two or more persons shall be indebted on a joint contract or upon a judgment founded upon any such contract, and either of them shall die, his estate shall be liable therefor as if the contract had been joint and several, or as if the judgment had been against him alone," - proceeds (p. 587): "This statute effected an entire abrogation of the common-law principle to which allusion has been made, and left the estate of the joint debtor liable to every legal remedy as fully as though the contract had been joint and several. Until the passage of the act to establish a code of civil procedure, it is true his personal representatives and the survivors could not be sued in the same action. But by the 38th section of that act it is provided that 'persons severally liable on the same obligation or instrument may all or any of them be included in the same action at the option of the plaintiff.' And the 371st section allows a several judgment to be given against any one of the defendants as the nature of the case may re

ject by the courts of New York and of many other States is clearly established by an overwhelming weight of authority, I do not hesitate to say that it is as plainly opposed to the obvious intent, and even to the very letter, of the reform legislation. When the statute has in express terms abolished all distinctions between actions at law and suits in equity, has declared that in all cases any person may be made a defendant, who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination and settlement of the questions involved, and has finally authorized a several judgment to be rendered in any action, it is simply a palpable violation of these positive provisions to say that a creditor shall not maintain a legal action against the personal representatives of a deceased joint debtor, but shall be driven to an equitable suit, and that only in a certain contingency; it is a useless sacrifice to the merest form. I would not be understood by this criticism as denying the existence of the rule, for it is too well settled to be doubted. If, however, the courts shall at any time accept the intent of the legislatures, as it is plainly shown in their statutory work, and shall adopt a general equitable theory of interpretation, which shall be applied in all cases to all actions without reservation or exception, so that there shall result one single and uniform system of procedure, then without doubt the rule that I am criticising will be abandoned, and the conclusions reached by the Indiana courts will be accepted in all the States.

§ 206. * 305. IV. Actions upon Contract; Joint and Several Liability. No Change by General Language in most Codes. Illustrations. The former doctrine of the common law concerning joint and several contracts and suits thereon has not been affected by the new procedure, except in those few States, already referred to,1 whose codes or statutes permit the creditor in all cases to sue all, or any, or one of the debtors or co-contractors. The general language found in most of the codes has wrought no change in the practical

quire. In the opinion of the court, these sections permit the joinder of the survivor or survivors and the personal representatives of the deceased obligor in the same action, whether the contract is in terms joint and several, or is made so by the 90th section of the administration statute upon the death of the joint obligor, and authorize a separate judgment

against each according to the nature of
their respective liabilities." The con-
struction here put upon the Ohio statute
is certainly far more equitable, and in ac-
cordance with their intent, than that put
upon the code of New York. See also
Sellon v. Braden, 13 Iowa, 365.
1 Ante, p. 289, note.

rules.1 This proposition is sustained by many of the cases in reference to joint liability, cited under the foregoing paragraphs; it is also recognized or distinctly affirmed in many particular instances, among which I mention a few. Two insurance companies had insured a building by separate policies, each of which contained the usual rebuilding clause. Upon the occurrence of a fire, they united in a joint notice of their election to rebuild, and partly completed the work under such notice. Default being made by them, the owner brought an action against one of them to recover damages for the non-performance of the contract to rebuild. It was held that by the election the companies had turned their policies into building contracts, and were liable according to the terms thereof, and that the owner might sue both in a joint action, or either in a separate action; in other words, that their liability was joint and several. Premises were leased with covenants against under-letting, and against using the building for certain purposes. The lessee sub-let portions to different under-tenants, who violated the covenants by using them in the prohibited manner. An action against all, the lessee and the sub-tenants, to recover damages for the breach of the covenants, was held proper, although it was said the plaintiff must have a separate judgment against each defendant for the special injury and wrong done by him. A separate action might also have been brought against the original lessee and each of the under-tenants.* When an express joint and several note is made by a firm, and is signed by the firm name, it retains its joint and several character; an action may be brought either against all the partners, or against each or one of them. In certain States, as has already been mentioned, the express language of the codes permits an action

1 [Certain statutory presumptions exist in some States. See notes to §§ 275, *276, where the statutes of California, Montana, Oklahoma, and North and South Dakota are set out.]

2 [State v. McDonald (1895), Idaho, 40 Pac. 312; Council Bluffs Savings Bank v. Griswold (1897), 50 Neb. 753, 70 N. W. 376.]

429.

1206, 821, 822) of the New York code. The entire decision is in closer harmony with the plain intent of the code than many others which have been cited. See Trabue v. McAdams, 8 Bush, 74.

5 Snow v. Howard, 35 Barb. 55. See O'Gorman v. Lindeke, 26 Minn. 93 (a joint and several bond). A covenant to indemnify persons against liability on a

3 Morrell v. Irving F. Ins. Co., 33 NY. bond wherein they are jointly and sev

4 Gillilan v. Norton, 6 Robt. 546. The ruling of the court in respect to a separate judgment was based upon § 274 (1205,

erally bound, is also joint and several. Hughes v. Oreg. Ry. & Nav. Co., 11 Ore. 437.

6 Ante, p. 289, note.

against any number of joint and several debtors at the plaintiff's option, as well as against any number of joint debtors. If several defendants are sued jointly upon an alleged joint and several contract, the plaintiff may sever in the recovery, and take judgment against a portion only, if the evidence shows such a liability; and when one of two or more persons jointly and severally liable dies, the creditor may at once sue the personal representatives of the deceased in a separate action, or may sue the survivors.3

[ocr errors]
[ocr errors]

§ 207. 306. V. Actions upon Contract; Several Liability. No Change in Common-Law Doctrines - Except. No change has been made in the common-law doctrines and rules concerning several liability arising from contract, except that produced by the provision found in all the codes in substance as follows. Persons severally liable on the same obligation or instrument, including the parties to bills of exchange, promissory notes, and negotiable bonds, and in some States sureties, may all, or any of them, be included in the same action at the option of the plaintiff. This clause certainly effects a very important change in the ancient rule, in all cases where the liability flows from an instrument or contract in writing, in that it permits a creditor to sue all the several promisors, or any number of them, instead of restricting him to a separate action against each. The effect of this clause, and the extent of the change wrought by it will be discussed at large in Section VIII. of the present chapter. With this exception, the common-law doctrine is unaltered. In many States it is settled by a decided preponderance of authority, that a principal debtor and a guarantor thereof cannot be joined as co-defendants in the same action. Even when the principal debt is evidenced by a written instrument, and the guaranty is in

1 Rose v. Williams, 5 Kan. 483; Jefferson County Com'rs v. Swain, 5 Kan. 376; Kupfer v. Sponhorst, 1 Kan. 75; Rose v. Madden, 1 Kan. 445; Sellon v. Braden, 13 Iowa, 365; Ryerson v. Hendrie, 22 Iowa, 480; Clapp v. Preston, 15 Wis. 543. This last case arose under a provision identical with § 120 (454) of the New York code as to parties severally liable on the same instrument; and see Powell v. Powell, 48 Cal. 234. In Kansas a personal money judgment against two or more is a joint and several obligation. Read v. Jeffries, 16 Kan. 534.

2 [Black Hills Bank v. Kellogg (1893), 4 S. D. 312, 56 N. W. 1071.]

8 Speyers v. Fisk, 6 N. Y. Sup. Ct. 197; Parker v. Jackson, 16 Barb. 33; McIntosh v. Ensign, 28 N. Y. 169; Harrington v. Higham, 15 Barb. 524.

4 See Powell v. Powell, 48 Cal. 234. Persons severally liable for different items of a general demand cannot be joined as defendants in one action. Miller v. Curry, 53 Cal. 665.

dorsed upon the same paper, the parties are not "severally liable on the same obligation or instrument," and do not fall within the provision last above quoted. A separate action must be brought against the principal debtor and against the individual guarantor.1 This doctrine does not prevail in all the States. It is held in some, by very able courts, that where the payee or owner of a promissory note transfers the same, and writes a guaranty upon it, he may be sued as a guarantor, together with the maker thereof, in one action; and the same doctrine has been applied to a similar transfer and guaranty of a contract to pay money not negotiable in form.2 In an ordinary action to recover upon a debt due by an insolvent corporation, over which a receiver has been appointed, he is not a necessary, nor even proper co-defendant when no cause of action is stated, and no relief is prayed against him.3

§ 208. * 307. VI. Liability in Actions for Tort. Common-Law Doctrines Unchanged. General Rule as to Parties Defendant herein. Illustrations. The common-law doctrines concerning the liability of tort-feasors, and as to the joinder or separation of them in actions brought to recover damages for the wrong, are entirely unchanged by the new system of procedure. It is unnecessary to repeat these ancient rules; that they are still in operation with their full force and effect is sufficiently shown by the following particular instances. In general, those who have united in the commission of a tort to the person or to property, whether the injury be done by force or be the result of negligence or want of skill, or of fraud and deceit, are liable to the injured party without any restriction or limit upon his choice of defendants against whom he may proceed. He may, at his option, sue all the wrong

1 [Sims v. Clark (1892), 91 Ga. 302, 18 S. E. 158.] Le Roy v. Shaw, 2 Duer, 626; De Ridder v. Schermerhorn, 10 Barb. 638; Allen v. Fosgate, 11 How. Pr. 218; Phalen v. Dingee, 4 E. D. Smith, 379; Bonduront v. Bladen, 19 Ind. 160; Virden v. Ellsworth, 15 Ind. 144. See Stout v. Noteman, 30 Iowa, 414, 415; Tucker v. Shiner, 24 Iowa, 334. Also Graham v. Ringo, 67 Mo. 324; Barton v. Speis, 5 Hun, 60.

2 Marvin v. Adamson, 11 Iowa, 371; Mix v. Fairchild, 12 Iowa, 351; Tucker v. Shiner, 24 Iowa, 334; Peddicord v. Whittam, 9 Iowa, 471. It is to be noticed

that in each one of these cases the guarantor was the original payee or promisee, and also the assignor; but it must be said that the court does not lay any stress upon this fact as a ground for its decision.

3 Arnold v. Suffolk Bank, 27 Barb. 424. In an action against two or more as for money had and received, a complaint is demurrable which shows that the money was received otherwise than jointly; although the joinder might have been proper if the action had sounded in tort: Simmons v. Spencer, 9 Fed. R. 581; 3 McCrary, 48. [Loustalot v. Calkins (1898), 120 Cal. 688, 53 Pac. 258.]

« PreviousContinue »