Henderson v. Hammond

DARGAN, C, J. This suit was brought on an agreement by which the plaintiff was employed by the defendant and others to teach a school for the term of one- year. The agreement specifies the duties of the teacher and the rates of tuition agreed to be paid for each student. The name of the defendant was subscribed to the articles of agreement, and opposite thereto was affixed the figure 5, intending to denote the number of students he engaged to send. The suit is brought to recover for the tuition of these five; and the defendant requested the court to charge the jury, that the agreement created a joint obligation on 343 all the subscribers, and therefore, the plaintiff could not recover against the defendant alone, which charge the court refused to give. We should be disposed to hold that the agreement created a several obligation on each subscriber to pay the tuition of those children he agreed to send to the school, and no more. But if the contract could bear the construction that each subscriber was bound for the tuition of each student agreed to be sent, still it could not avail the defendant, for the rule is well settled, that if two or more be bound jointly, but not severally, and one alone is sued, he can only take advantage of the non-joinder of liis co-contractors by plea in abatement, and cannot insist upon such omission under the general issue in bar of the action.— Chitty’s Plead. 46; Jones, et al. v. Pitcher, 8 Stew. & Por. 185. Whether or not, there may not be cases in which such an omission would be fatal on a motion in arrest of judgment, or on error, it is needless to inquire; for even if such cases may exist in consequence of the declaration showing that there are other joint contractors who are still living and amenable to the jurisdiction of the court, it is nevertheless evident, that the defendant who is sued cannot take advantage of their non-joinder on the trial before the jury, to defeat the action on its merits. The second instructions requested by the defendant the court also refused to give, and we think with equal propriety. This school, though it appears to have been taught on the sixteenth section, was certainly not subject to the control of the commissioners or trustees of the sixteenth section. The teacher was not employed by the trustees, nor could he look to them for payment; he was employed by the subscribers to the agreement, which specified his duties. To the subscribers alone was he responsible for his conduct, and the trustees of the sixteenth section had no right to control or govern the school. Whether they could have interfered, and prevented the plaintiff from teaching on the sixteenth section, is a question not necessary to notice, for the school was taught during the year in pursuance of the articles of agreement, and the subscribers are bound to pay according to their contract. There is no error in the judgment, and it must loe affirmed.