Dickey v. Willis

Rugg, C. J. This is an action of tort against two defendants. The declaration contains two counts, one setting forth certain acts performed by one defendant, and the other, acts performed by the other defendant. But there is no allegation of conspiracy or concert between them. There is nothing which fairly can be construed as an averment of joint actions or conduct which would constitute them joint tortfeasors. The acts alleged to have been performed by each defendant are different and they are not alleged to have been part of a common design. Two persons cannot be joined as defendants in an action of tort unless they directly or indirectly co-operate in the doing of the wrong. The allegations do not bring this case within that class of actions. Feneff v. Boston & Maine Railroad, 196 Mass. 575, and cases cited at 580. Fletcher v. Boston & Maine Railroad, 187 Mass. 463. There is a misjoinder of defendants. On this ground the demurrer to both counts must be sustained. It is not necessary to pass on the sufficiency of either count, as if it were against a single defendant, although it may be remarked that there is no averment that the representation contained in the contract between Willis and McFarlan and Company was made to the plaintiff or that he relied upon it. According to the terms of the report the entry must be Judgment for the defendants.