Westcott v. King

Hand, J. The interests of the two firms, represented by King and Hays, were distinct; and the schedules of the goods which each had sold were annexed to the bond; by the last clause of which, it is stated to be “ understood and declared,” that the moneys that Hayes and King shall be obliged to pay Root & Hoag, and also in case of any liability created against them, they shall pay in proportion to the “ respective amounts [37] of the goods as aforesaid, by them severally sold, in their firm names, to the said Root &, Hoag.” But, by the bond, Hayes, King and Westcott declare they are held and firmly bound to Root & Hoag in the penalty of $1000, to the payment of which they “jointly and severally” bind themselves. And, by the condition, Hayes and King were to indemnify and save harmless Root & Hoag from the payment of the Ferris note, to the extent only of the amount of said inventories, being $490,79. As to covenantees, it is said, that one and the same covenant cannot be made both joint and several with them, where the interest is joint. And the rule seems to be, that if the language of the covenant is capable of being so construed, it will be taken to be joint or several, according to the interest of the parties to it. (See Eccleson v. Clipsham, 1 Saund. 153, and notes; Slingsby's case, 5 Co. 19; Bradburne v. Botfield, 14 M. & W. 559; Addison v. Crick, 10 Q. B. Rep. 106; Keightley v. Watson, 4 Exch. 716; James v. Emery, 5 Price, 529; S. C., 8 Taunt. 245; 2 J. B. Moore, 195; Sorslie v. Park, 12 M. & W. 146; Hopkinson v. Lee, 6 Q. B. Rep. 964; Anderson v. Martindale, 1 East, 497; Wakefield v. Brown, 9 Q. BRep. 209; Mills v. Ladbrooke, 7 M. & G. 218; Moor, 260; Withers v. Bucham, 3 B. & C. 254; Ludlow v. McCrea, 1 Wend. 231; Rawle on Cov. 453, 454, and note.) So far, the authorities seem to agree; but there has been a contrariety of opinion as to how far this construction must yield to an intention evinced by the use of express language. (Preston's Touch. 166. Parke, B. in Bradburne v. Botfield, supra. Gibbs. C. J. in James v. Emery, supra. Lord Denman, C. J. in Hopkinson v. Lee, supra.) But as to covenantors, they may covenant jointly; or severally; or jointly and severally. And, it seems, that they may be bound severally, though the interest be joint. (Duke of Northumberland v. Errington, 5 T. R. 522. Enys v. Donnithorne, 2 Burr. 1196. Mansell v. Burridge, 7 T. R. 352. And see Robinson v. Walker, 1 Salk. 393; Lilly v. Hodges, 8 Mod. 166; 5 Co. Rep. 23; Coope v. Twynam, 1 Tur. & R. 426; Simson v. Cooke, 1 Bing. 452; [38] Berkley v. Presgrave, 1 East, 220. But see the language of the judge in Johnson v. Wilson, Willes, 258.) If the covenant is joint and several, the covenantee may sue one or all, (Platt on Cov. 117, 118.) By a joint covenant, several maybe answerable, each for himself, and also for the defaults of his co-covenantors ; and they are, in that respect, in effect, co-sureties for each other. And one may, it seems, in the same instru-ment, be bound for the performance of distinct acts by different persons. (See Simson v. Cooke, supra; Enys v. Donnithorne, supra; Sorslie v. Park, supra.) [Saratoga Special Term, June 21, 1852. Hand, Justice.l In this case, the positive declaration that the liabilities of Hayes and King, and the payment by them of any sum to Root & Hoag, shall be in certain specified respective proportions, would seem to be too clear to admit of doubt as to the intention of the parties. But the court, in the action brought by Root &. Hoag against these parties, must have considered that clause as only defining rights as between Hayes and King; and not as impugning or qualifying the intention to be jointly bound as before expressed. But on whatever ground, in that cause, the decision was placed, judgment decides that they were jointly bound to Root & Hoag. Their joint liability to Root & Hoag being established, in the absence of any stipulation to the contrary, their obligation to their surety must be considered co extensive. He has borne their burden, and liberated each of them from the liability for the whole debt; and as a corollary to that, they should indemnify him. And he may proceed against each or all, for the whole. (Poth. on Obligations, p. 2, ch. 6, § 7, art. 1, §§ 1, 5. Theo. Pr. & Sur. 169, ed. of 1836. 14 Ves. 22. Burge, 360, 364.) And besides, he stands, in many respects, in the place of the creditors. I think there must be judgment for the plaintiff for the whole amount paid by him, and not already repaid to him Ordered accordingly.