Passut v. Heubner

Page, J. Though there are a few authorities to the. contrary (Samuels v. Evans, 1 McLean, 473; Spaulding v. Evans, 2 id. 139; Ellis v. McLemoor, 1 Bailey [S. C.], 13) the weight of authority in this country overwhelmingly supports the contention of the respondent that a promissory note payable to two persons in the alternative creates a joint interest in the payees and either cannot in the lifetime of the other sue thereon with [250] out joining the other joint obligee. Willoughby v. Willoughby, 5 N. H. 244; Osgood v. Pearsons, 70 Mass. 455; Carr v. Bauer, 61 Ill. App. 504; Westgate v. Healy, 4 R. I. 523; Quinby v. Merritt, 11 Humph. (Tenn.) 440; Collyer v. Cook, 28 Ind. App. 272, 275. The case of Stelling v. Grabowsky, 46 N. Y. St. Repr. 700, relied upon by the appellant, is a case in which the other joint obligee was deceased. By reason of his right of survivorship the remaining obligee was entitled to sue upon the obligation alone; and also held, that, no demurrer having been interposed to the complaint, the objection that the action could not be maintained by one of the joint obligees was waived and could not be taken by answer. There seems to be no direct authority in this state, but upon principle and weight of authority in other jurisdictions I am of the opinion that the obligation is joint and that the demurrer was properly sustained for defect of parties plaintiffs. The interlocutory judgment should be affirmed, with costs. Seabury, J., concurs.