McIntosh v. . Ensign

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 171 The only allegation of error made by the appellants' counsel is in the court refusing to nonsuit or direct a verdict or judgment in favor of the defendants, *Page 172 whose liability was established by the evidence, on the ground of a misjoinder of defendants in the action. The plaintiff complained against five defendants, alleging a joint liability. The facts proved tended to establish a cause of action against the defendants Ensign and Holt, who answered, but against the other defendants no liability whatever was shown. The court deeming that upon the proof the plaintiff would have been entitled to recover against Ensign and Holt, if he had sued them alone, refused to take the case from the jury and order judgment in their favor. The general rule of the common law undoubtedly was, that in an action on 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 on the trial, if he failed in proving a joint contract. (1 Chitty's Pleadings, 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 he could recover against any of the defendants upon the facts proved, had he sued them alone, the recovery against them is proper, although he may have joined others with them in the action against whom no liability is shown. (Code, § 136, 274; Brumskill v. James, 1 Kern. 294;Marquat v. Marquat and wife, 2 id. 336; Harrington v.Higham, 15 Barb. 524; Parker v. Jackson, 16 id. 33.) It will be observed that the question did not properly arise in this case, whether in a suit alleging a joint liability, where the proof established a case of joint indebtedness only, a several judgment might be rendered against one or more of the defendants named in the complaint. It may be conceded that under such circumstances a joint judgment could only be properly rendered. Here the complaint was against five defendants as common carriers, and the proof tended to establish a cause of action against two of them, and there was no proof whatever that the other three were liable jointly or otherwise. The contract was to carry *Page 173 the property to Milwaukee on the propeller Cuyahoga, which ran in the People's Line of propellers from Buffalo. Through the agent of the line at Buffalo the contract was made, and the property received into its possession for transportation. Ensign, one of the defendants sought to be charged, admitted this to be the defendants' contract, and it was further admitted that both Ensign and Holt were part owners of the vessel on which the property was agreed to be shipped. The evidence was abundant to charge Ensign, and tended to establish Holt's liability, as part owner and jointly interested with Ensign in the business of the People's Line. There was no proof that the other defendants, or that any other persons, were interested with them in the business of this line. It is true that it might be implied, from the admission that Ensign and Holt were part owners of the propeller Cuyahoga, that there was another owner or owners of that vessel; but it was not necessarily to be implied that they were interested in the business conducted by the freighting establishment known as the People's Line. I can not doubt that the plaintiff, upon the facts proved, could have recovered against Holt and Ensign had he sued them alone, and hence, although he had joined others with them in the action against whom no liability was shown, it was not error in the judge, upon their request, to refuse to direct a verdict or order judgment in their favor. The judgment should be affirmed.