Holyoke v. Loud

Walton, J. It is familiar law that in actions on contracts all the contracting parties must, as a general rule, be made parties to the suit, either as plaintiffs or defendants. In assumpsit, the non-joinder of a co-promisor as defendant can only be taken advantage of by plea in abatement; but the non-joinder of a co-promisee as plaintiff is ground for a nonsuit. 2 Green. Ev., § 110, and authorities there cited. The suit now under consideration is an action of assumpsit, and it is brought in the name of Caleb Holyoke alone. He is one of the former owners of the schooner Burmah, there being six in all. The evidence shows that the defendants’ liability, if any, is by virtue of a contract with all the owners. All theii; accounts, and [62] bills, and receipts, are with the schooner Burmah and owners. The omission to join the other owners as plaintiffs in the suit is fatal to its maintenance, unless the omission is in some way excused. It is said in argument that, the plaintiff was not only a part owner of the schooner, but also an agent for all the others; that, as such owner and agent, he settled with the defendants, and, by mistake, overpaid them ; that this action is brought to recover back the sum so overpaid ; and authorities are cited to the effect that when an agent pays money for his principal, by mistake or otherwise, which he ought not to pay, the agent, as well as the principal, may maintain an action to recover it back. The law is so stated in Story on Agency, § 398. A fatal objection to this argument is that the proof does not sustain it on a matter of fact. • The evidence fails to show that the plaintiff ever paid the defendants any money, by mistake or otherwise. It shows that, at the time of the alleged settlement, the defendants wrere indebted to the owners of the schooner Burmah, and that, by mistake or otherwise, they neglected to pay the full amount of their indebtedness. No money passed from the plaintiff to the defendants. The difficulty, if any, was that, by reason of errors or mistakes in their account, they did not pay enough to him. And, as the debt was originally due to all the owners of the schooner jointly, so the balance, if any, still due upon it, must be owing to them all jointly; and, if sued for, must be sued for in the name of all. The action, in its present form, is not maintainable. Plaintiff nonsuit. Appleton, O. J., Barrows, Daneorth, Peters and Libbey, JJ., concurred.