legal notion of survivorship forbade the union of the personal representatives of a deceased joint contractor with the others who were living, and even the union of the representatives of all, if all were dead. The text of the Code is broad enough, and explicit enough, if it is taken literally, to abolish these legal restrictions upon the freedom of joining parties as plaintiff.”

And, again, in § 116:

"If the persons have any interest, whether complete or partial, whether absolute or contingent, whether resulting from a common share in the proceeds of the suit, or arising from the stipulations of the agreement, the language applies without any limitation or exception."

The Appellate Division of the Supreme Court of the State of New York held, in the case of Jacobs et al. v. N. Y. C. & H. R. Rd. Co., 107 App. Div. 135, 94 N. Y. Supp. 954, in construing a statute of that state practically identical with § 11254, General Code of Ohio, that the insured and the insurance company may unite in a single action against a railroad company to recover damages for property destroyed by fire by the negligence of the railroad company. In the opinion (107 App. Div. on page 137, 94 N. Y. S. on page 955) it is said:

"The complaint is that defendant by its single negligent act caused the destruction of the property and thereby became liable. This constituted a single and entire cause of action which was not separated into several distinct ones because different parties acquired an interest therein, and it was proper that all of the parties interested should be joined as plaintiffs."

The court cited in support of this conclusion many authorities, including Lake Erie & Western Rd. Co. v. Falk et al., 62 Ohio St. 297, 56 N. E. 1020, 7 Am. Neg. Rep. 655. In that case this court held:

"The ultimate liability for such loss is upon the railroad company, and in an action brought for its enforcement, the owner and the insurer being parties, there should be a recovery for the value of the property destroyed without deduction on account of payments made to the owner by the insurer in discharge of the obligation imposed by its policy."

In the opinion at page 306 of 62 Ohio St. at page 1023 of 56 N. E., the court said:

"The object of the suit was to recover the value of the property

from the party ultimately liable, and to apportion the proceeds of the judgment recovered between the injured parties according to their interests in the amount recovered. The recovery sought was for a single wrongful act, and the railroad company could have objected with more force if it had been subjected to two actions by those interested in the recovery. This mode of asserting the rights of parties in the subject of a single cause of action, all being brought into the same suit and cach asserting his own interest, is in conformity with the requirements of modern procedure."

While in the above case the insurance company was nominally a defendant, yet it was to all intents and purposes a coplaintiff, and the verdict was for the full value of the property, upon which verdict the court rendered judgment and apportioned the same between the owner and the insurance company. This court cited in support of its judgment in that case Swarthout et al. v. Chicago ⚫ & Northwestern Ry. Co., 49 Wis. 625, 6 N. W. 314, in which case it was held, under a statute similar to our own, that-

"Where the owner of the property and several insurers have rights of action for different portions of the value, all arising out of the same wrongful act, they may join in a single action against the wrongdoer."

In the case at bar the rights of the executor and the owners of the fee are in no sense adverse. Their amended petition avers that the widow and the son are the owners, subject to the right of the exccutor to sell the same to pay the debts, and that the probate court has issued an order to the executor to sell all or such part of this real estate as may be necessary for that purpose.

There is but one recovery sought for the same wrongful acts of the defendant. Each of the plaintiffs has an interest in the subject of the action and in obtaining the relief demanded. The executor is representing not only the creditors of the estate, but also the estate itself, which is of course interested in the payment of its debts, and the owners of the fee are interested to the extent of the residue of the property after the payment of the debts. If the exccutor and owners of the fee had brought separate actions, their right to recover would have been based upon the same state of facts and the same injury to the same property. In such event the defendant would be compelled to defend against two separate suits for the same acts, and the courts would thereby be burdened with a multiplicity of suits.

As said by this court in the opinion in the case of L. E. & W. Rd. Co. v. Falk et al., 62 Ohio St. 306, 56 N. E. 1023, 7 Am. Neg. Rep. 655, the defendant "could have objected with more force if it had been subjected to two actions by those interested in the recovery."

If the plaintiffs in this action are able to maintain the allegations of their amended petition by the evidence, they are entitled to a verdict and judgment for the full amount of the injury caused to this property by the wrongful acts of the defendant, and the court will apportion this judgment as was done in the case of Railroad Co. v. Falk et al., supra, by awarding to the executor such part thereof as may be necessary to pay the debts of the estate, and the residue to the owners. School Districts v. Edwards et al., 46 Wis. 150, 49 N. W. 968, and Seymour et al. v. Carpenter et al., 51 Wis. 413, 8 N. W. 251.

McIntosh v. Ensign, 28 N. Y. 169. Court of Appeals, New York. 1863.

EMOTT, J.: The plaintiff sued five persons as common carriers in an action founded upon their contract to transport certain property from Buffalo to Milwaukee. He might have framed his action in tort and held them liable upon their common law liability and duty. But his complaint alleges an express understanding on their part to transfer and deliver the property in question, and its breach by their failure to do so, and asks for damages for their nonperformance of the contract.

The plaintiff's action is therefore subject to the rules which govern actions upon contract; and if his recovery is obnoxious to any objections founded upon these rules, he must fail, notwithstanding that the alleged breach of contract was also a wrong, and that he might have avoided such difficulties by suing in tort.

The complaint alleges a joint liability of all the defendants, and such is the nature of the engagement alleged to have been made. That it was a joint, and not a several, agreement of all the parties who made with the plaintiff, whoever these parties were, and these parties were jointly responsible to the plaintiff with whom they contracted. Ensign and Holt, two of the defendants, appeared and answered, putting in a simple general denial of the complaint. The other three defendants were nonresidents. They do not seem to have been served with process or to have been other

wise brought in, and they did not appear or answer. At the trial, the delivery of the goods on board the propeller Cuyahoga at Buffalo to be carried to Milwaukee was proved, and was shown that they were not delivered according to the agreement by which they were received on the vessel. It was admitted that Ensign and Holt were part owners of the vessel. The contract was made with the plaintiff by an agent of the vessel, and there was sufficient evidence that this person was authorized to make the contract which he did, and to bind the owners of the vessel thereby. It was thus the contract of Ensign and Holt. But it was proved that there were other owners of the vessel, who were of course also bound by the same agreement upon which Ensign and Holt were liable.

The misjoinder of parties who are not jointly liable in an action on a joint contract would have been fatal to the plaintiff before the Code. Upon the facts which appeared at the trial, the plaintiff would have been nonsuited, although the three defendants who were misjoined had not appeared, and even if they had been served with process and had suffered default. (Manahan v. Gibbons, 19 Johns. 109 [affirmed in 19 Johns. 427]; 1 Chitty, Pl. 32; Buller, N. P. 129). But the Code, §§ 136, 274, has abrogated this strict and technical rule. The 136th section is to the effect that, "where the action is against two or more defendants, if all of them have been served, judgment may be taken against any or either of them severally where the plaintiff would be entitled to judgment against such defendant or defendants if the action had been against them. or any of them alone." By the 274th section, in an action against several defendants, the court is authorized, in its discretion, to "render judgment against one or more of them, leaving the action to procced against the others, whenever a several judgment may be proper."

In Harrington v. Higham, 15 Barb. 524, the Supreme Court held that, where in an action alleging a joint liability against three defendants, it appeared that two of them were served and the third was not, the two who were liable could not take advantage of the non-liability of the third. In Parker v. Jackson, 16 Barb. 33, an action was brought against two members of a firm upon a promissory note signed with the firm name. It appeared that one partner had used the firm name without authority, and therefore the other partner was not liable. Upon this provision of the Code, however, the court held that the plaintiff might have sued the

partner who signed the note alone, and therefore he could have judgment against him, while the other defendant was discharged. These were cases of joint contract, and they were alleged to be joint in the complaints founded upon them. The construction placed upon the Code, as intending to change the rule to which I have referred, is decisive of the present case, and it is a reasonable and satisfactory one.

The inconvenience arising from the rule of the common law, that where the subject of the suit was a joint contract, the recovery must be against all the defendants or neither, was what these provisions designed to remedy. Their true construction is that when in an action upon a joint contract one or more of the defendants is proven not to be liable, and one or more of the others to be liable, a separate judgment may be given against those who are liable, whether their liability be joint or several, and the other defendants may be dismissed. The test is whether the plaintiff can recover in the action against any of the defendants if they had been sued alone.

He

In the present case the plaintiff would have been entitled to recover upon the present pleading against Holt and Ensign jointly, if the other three defendants had not been sued with them. will not therefore be defeated, as the case now stands, because he has joined these three persons who are not liable, but he will have judgment against those who are liable, and the others may have judgment against him. Nor will he be defeated because, if he had sued Holt and Ensign alone, they might have pleaded the nonjoinder of other parties in abatement. They have not done so, and they stand on the record jointly liable to the plaintiff, while it is immaterial in this action whether others could have been sued or

not.

WRIGHT, J.: The general rule of the common law undoubtedly was that, in an action upon an alleged joint contract, the plaintiff must have recovered against all the defendants or been defeated. The recovery must have been against all or neither. If too many persons were made defendants, the plaintiff would have been nonsuited at the trial if he failed in proving a joint contract. 1 Chitty, Pl. 31.

But that is not the present rule. A plaintiff is not now to be nonsuited because he has brought too many parties into court. If