Wright v. Post

Hosmer, Ch. J. In this case, after the plaintiffs had proved the contract, as alleged in the declaration, Starkey, the officer, who had the execution issued on the judgment obtained by Job and Benjamin Wright against them, was offered to testify, that one of the plaintiffs paid a third of it, and the other two the residue. The defendant objected to the admission of the testimony, that the claim of the plaintiffs, in their action for expenses and damages was joint, but that the evidence [145] offered proved the expenditures to be several. It was adjudged to be inadmissible, and was rejected. This raises the question, whether the evidence offered proved the plaintiffs’ allegation. If the legal interest of the plaintiffs in the sums paid on the execution was joint, the testimony should have been received ; but if several, it was rightly rejected. 1 Chitt. Plead. 5. For, when the legal interest of the promisees is several, they must sue severally. 1 Chitt. Plead. 6. A different doctrine would be unreasonable even to absurdity. The declaration, undoubtedly, states a joint contract; and the motion admits it to have been proved before the rejected testimony was offered. It avers, likewise, a joint defence and expenditure. Now, it is admitted, that the defendant promised the plaintiffs, if they would defend the suit, which Job and Benjamin Wright might bring against them, he would pay his proportionable share of the expence attending the defence. It also appears, that an action was brought against the plaintiffs ; that they made a joint defence ; and that judgment was rendered against them. Although I have fluctuated on this point, I am now satisfied, that the joint defence made, when coupled with the defendant’s promise, constitutes a joint cause, of action. In this view of the subject, it makes no difference to the defendant, whether the money was ever paid by the plaintiffs, if the liability to pay existed ; and the testimony offered was necessary only to ascertain the damages. To this end it should have been admitted. I proceed on the ground, that the plaintiffs, founding themselves on a simple contract, are bound to prove, not only a joint promise, but a joint consideration. This, I think, they did, independently of the testimony offered; and if the extent of the liability were ascertained, I do not see any necessity for the evidence which was rejected. But, as the judge proceeded on the ground that it was requisite to sustain the action, (having repelled, it as being irrelevant,) I am of opinion, this erroneous decision renders it just, that there should be anew trial. As to the testimony relative to the expences, incurred forjk the support of witnesses, by the plaintiffs jointly summoned, for their joint benefit, it undoubtedly should have been received. Whoever paid the money, it was paid to satisfy a joint duty; and the others were bound to contribute» Besides, there was testimony sufficient to to have been left to the [146] consideration of the jury, in addition to the combined benefit received, whether the advancement was not on joint agreement and request. I am of opinion that a new trial ought to be granted. The other Judges were of the same opinipn. New trial to be granted.