Scott v. Keith

Poland, J. The plaintiffs in error claim that the judgment below was erroneous upon three grounds. [249] 1. That the written promise upon which the action was brought was a several promise by each defendant to pay his individual share of the debt to Kennedy, and not a joint undertaking by the three to pay the aggregate of all their shares. 2. That if the promise can be regarded as joint, it is not supported by any sufficient consideration. 8. That no action will lie upon it, because no balance was struck or sum agreed upon as the share of the defendants. 1. The facts set out in the declaration in relation to the origin of the debt to Kennedy, show a joint liability by the plaintiffs, the defendants, and Mr. Wing, to Kennedy for five hundred and eighty-two dollars and sixteen cents, and in the absence of proof of a different ratio of liability, the legal presumption would be that they were liable equally, so that if one paid the whole each of the others would be liable to contribute his equal proportion to reimburse the one paying. This implied liability to contribute would be several, and not joint. But the defendants, by their writing, said to the plaintiffs that if they would pay the whole the defendants would pay their share. The form of the defendants promise is joint, and none of the ordinary words used to make a contract several are inserted. The general rule of law undoubtedly is, that whenever several persons agree to perform a particular act, they are bound jointly and not severally, in the absence of express words creating a several liability, and any number of persons may bind themselves jointly for the performance of one entire duty, and so become in effect sureties for one another for the performance of the thing contracted to be done. See Addison on Contracts 966-7 ; Chitty on Con. 98. Whether a promise or contract made or signed by several persons is joint or several, like every other question on the construction of a contract, depends mainly upon what appears to have been the intention and understanding of the parties, to be gathered from the language of the whole instrument and its subject matter. Mere words of plurality alone will not render a contract joint when the parties engage for the performance of distinct and several duties, and the whole instrument shows that the intention must have been to make the obligation several, and not joint. [250] But wh'ere several persons contract together for the performance of a particular act, in order to make their liability several, the intention must be made apparent by express words; Add. pn Con. ub. sup. Now in this promise of the defendants to the plaintiffs, there are no proper words of severalty, and the only ground upon which it can be argued that the parties did not intend to be bound jointly, is that the defendants would only be liable severally to make contribution to either one who should pay the whole debt. The amount of the several liability of each was not thereby increased, only they became virtually by a joint promise sureties for each other. But while the debt was unpaid to Kennedy they stood each liable for the whole amount to him, and sureties for each other for the whole, so that they were really lessening the extent of their liability by this new contract. The intent of the defendants to become bound’jointly, and for an entire sum, is strengthened some, we think, by the form of the promise, “we will settle our share.” If they had said our shares•” it would have appeared more like an intention to remain only severally liable. We are of opinion that there is nothing in the language or subject matter of the contract that will authorize us to overcome the presumption arising from the entire and joint form of obligation used. 2. As this construction of the writing creates a different legal liability from that under which the defendants stood before, it must be supported by a consideration. The defendants below say that as the plaintiffs, before this promise was made, were under a legal obligation to pay their proportions of the debt to Kennedy, and Kennedy might enforce collection of the whole from either one or all of them, therefore, the voluntary payment of the whole by the plaintiffs below, at the request of the defendants, was no consideration whatever. The plaintiffs below were not bound voluntarily to raise the money and pay the whole, as between them and the defendants ; they were only bound to raise their proportions, and though Kennedy might collect the whole of the plaintiffs below, or one of them, he might also collect the whole o.f the defendants, and compel them to resort to their remedies for contribution. [251] The raising the money by the plaintiffs below and extinguish* ing the whole debt to Kennedy, was an act which as between the plaintiffs and the defendants the former were not hound to do, and was an act which might prove detrimental to the plaintiffs, and beneficial to the defendants, and therefore a sufficient consid* eration to support a promise by the defendants below was founded upon its having been done at their request. 3. Was the declaration defective in not alleging that the sum due Kennedy had been divided, and the share of the defendants ascertained ? The declaration avers that their share was a certain sum, two hundred and ninety-one dollars and eight cents. It does not allege that a balance had been struck, and this sum agreed on by the parties, but even if this were necessary to be done in order to make a legal severance, we think it doubtful^ at least, whether it would be necessary to allege it in the declaration. The declaration states as an allegation of fact, that the defend* ants’ share was a certain sum, and this implies that it has been legally ascertained; if it had not, it would rather be an objection to the proof than to the declaration. But we do not rest the decision upon this ground, as we think this case does not come within the class where it has been decided to be necessary that a balance shall be struck before any action except one for an account can be maintained. The defendants have cited and rely on this point upon Beach v. Hotchkiss, 2 Conn. 425, and Casey v. Brush, 2 Caine’s 293. The doctrine of both those cases is substantially this: that an action of assumpsit will not lie between partners for a balance due upon their partnership, unless the account has been previously liquidated and a balance struck. The soundness of these decis* ions is obvious, for until the partnership accounts have been settled, and the balance ascertained, the matter is in no suitable condition to be tried in any action, except where an account can be taken, therefore the parties must resort to an action of account, or a bill in equity, where the same can be adjusted. But here are no partnership dealings to be adjusted; all these parties were mere joint debtors to Kennedy, and if one paid the whole, or more than his share, he could immediately bring [252] assumpsit against the others for contribution. It does not appear that the parties Were under any other liabilities, or had made any other expenditures in this matter to be adjusted between them. The declaration alleges the debt to Kennedy to be a fixed and certain sum, so that nothing appears that any necessity existed for any adjustment of accounts to ascertain the share of the defendants, beyond a mere division of this single sum. We are of opinion, therefore, that the case does not fall within the principle of the cases cited by the defendants. Judgment that there is no error in the record complained of, and the judgment below is affirmed.