Walcott v. Canfield

Hosmer, Ch. J. The declaration alleges, that the defendants were proprietors of a line of stages from Hartford to Albany; and that, in consideration of six dollars and fifty cents, they undertook to transport the plaintiff and his baggage from the former to the latter place, in a certain specified time. This engagement they did not perform; and for the damage arising from non-performance, this action is brought. To prove the contract averred, the plaintiff offered in evidence an advertisement, which Canfield procured to be printed, and acknowledged that he had distributed in the community. As there was no evidence, that the advertisement was authorized, or approved, by the other defendants, the judge admitted the testimony offered, and limited its operation to Canfield only. The decision, in my opinion, was perfectly correct. The objection proceeds on the gratuitous assumption of an indispensible fact; that is, that Canfield had author [198] ity to make the engagement, for which the plaintiff contends. This supposition was supported by no evidence ; nor is the right to make this special contract inferrible, from the nature of the business, in which the defendants were connected. A copartnership, formed to transport passengers, and their baggage, in a stage, does not authorise one of the partners to bind the firm, by an agreement, that he will convey a person a certain distance, within a specified time. Unless he had special authority, he could only oblige himself, by a contract not within the scope of the connexion, and not his partners, who had never expressly, or impliedly, assented. Against five of the defendants, there was no evidence; and of consequence, they were entitled to a verdict. This, notwithstanding, the plaintiff claimed a right to a verdict against Canfield, on his separate contract; and the overruling of this claim, constitutes the remaining objection in the case. It is too manifest to require authority, that an action, founded on contract, against several defendants, cannot be sustained, by the proof of an agreement made by one of them, or by any number, not including all the persons sued. 1 Chitt. Plead. 31. Livingston's ex’rs. v. Tremper, 11 Johns. Rep. 101. The distinction between tort and contract, in this respect, is obvious and familiar. Now, the plaintiff’s action was founded on contract, and the non-performance of it/without the allegation of mal-feasance or ipis-feasance. The cases cited, have no bearing on the question between the parties. There has been a difference of opinion on the question, where the action is brought on contract, and the gravamen has been laid on tortious negligence, or breach of duty, by wrong done, whether a recovery can be sustained against a part of the defendants only. In Govett v. Radnidge, 3 East, 62., it was adjudged, that it might be done. This doctriné, however, has not the support of principle ; and the aboye case has been considered as of no authority. Powell v. Layton, 2 New Rep. 364. Max v. Roberts, & al. 2 New Rep. 454. The same court, which determined the case of Govett v. Radnidge, in the recent determination of Weall v. King, & al. 12 East, 452., have virtually overruled their former decision. This was an action against several defendants, alleging a deceit to have been effected, by means of a warranty, made on a joint sale, in which it was adjudged, that the plaintiff could not recover upon proof of a contract by one, as of his separaf s [199] property; the action, though laid in tort, being founded on the joint contract alleged. It was said by Lord Ellenborough, “ The argument, on the part of the defendant, has been, that this is an action founded on the tort; that torts are, in their nature, several; and that in actions of tort, one defendant may be acquitted, and others found guilty. This is unquestionably true, but still is not sufficient to decide the present question. The declaration alleges the deceit to have been effected, by means of a warranty, made by both the defendants, in the course of a joint sale, &c. The joint contract, thus described, is the foundation of the joint warranty, laid in the declaration, and essential to its legal existence and validity : and it is a rule of law, that the proof of the contract must correspond with the description of it, in all material respects, &c. Such allegation requires proof strictly corresponding therewith : it is, in its nature, entire and indivisible, and must be proved as laid, in all material respects.” The principle is this ; that in actions founded on agreement, the plaintiff, in every essential particular, must-prove the contract as he has alleged it; and it matters not, whether the breach of contract resulted from the omission to perform some act, which the defendants ought to perform,—cr from the improper performance of the act,—or from the doing what ought not to have been done. The other Judges were of the same opinion. New trial not to be granted.