Scott v. Whipple

Mellen C. J. delivered the opinion of the Court. Though the five contracting parties in the contract in question are [338] several contractors, and must sue and be sued as such ; still the' individuals composing the first and second parties, are joint contractors, and as such, must sue and be sued. The principle is perfectly familiar that in case of joint contracts, each contractor is answerable for the performance of the whole. In the case before us, if Pond had signed the contract, each of the four persons constituting the first party would have been liable to pay the whole sum stipulated to be paid by that party; and though Pond did not sign, still the other three are liable no further, in respect to either of the other four parties, than if he had signed. It is true, if Pond had signed, and the other three should be compelled to pay the whole sum, they would •have an action for contribution against Pond; and perhaps they would have a remedy against him though he did not sign ; founded on his original agreement to be concerned equally with Jones, White, and Whipple; but it is not "necessary to decide this point. The question of contribution is one in which the plaintiffs have no concern or interest, if they are satisfied with the contract, though unsigned by Pond. - They might have objected to it originally, had they seen proper, on the ground that the responsibility of four persons is better than that of three; but the contract as signed is satisfactory to the plaintiffs ; they have accepted it; and this action is proof of the acceptance. These, principles are supported by most of the authorities cited by the plaintiffs’ counsel. The present case differs from that of Stetson v. Patten & al. 2 Greenl. 358, There, no contract whatever existed on the part of the plaintiff; it had been signed by the defendants, but not by the plaintiff or any authorised agent. In the case at bar there was an effectual signature and execution of the contract by all the five parties. We do.not perceive any thing in this case distinguishing it in principle from those to which we have alluded. In several of those, the contractor who did sign, expected that one more would sign also; and such was the case here. But it is contended that the contract or instrument in question must be considered as merely an escrow, because it was never signed and sealed by Pond, as was originally intended. From the language of the report and the professed object in view in reserving the question submitted for our considera [339] tion, wc must consider it as admitted that the instrument was delivered by those who did sign and seal it, as their deed; there was no intimation to the contrary in the argument. The contract was treat-led as one which would have been completed in all respects, and binding on those who executed it, if Pond had never been contemplated as a party. Of course, the only question is, whether the omission of Pond to sign and seal it, has rendered it not the deed of those who did execute it. In this view it is plain that the argument of the defendants’ counsel cannot be sustained ; — no instrument can, according to legal principles, be deemed an escrow when delivered to the party entitled to receive it, and claiming interests under it. We are all of opinion that the verdict must be set aside, and a New trial granted.