Welles v. Gaty

Nafton, J., delivered the opinion of the court. Welles and Wetmore contracted with the Dry Dock Company of St. Louis, and Gaty, McCune and Glasby, for the building of a steam ferry boat. The contract was a written one, and purported to be between Gaty, McCune & Glasby, of the first part, the Dry Dock Company of the second part, and Welles and Wetmore of the third part. The boat was to be built in specified manner, and delivered in a specified time. From some cause, not material to be enquired into, the boat was not ready in time, and Welles and Wetmore refused to receive it when it was finished, and treating the contract as rescinded, Welles brought this action of assumpsit to recover back the money which had been advanced by Welles and Wetmore under the contract. It appeared in proof that all the money advanced was in fact Welles’ money, and that Wetmore merely contributed his services. Upon the trial the defendants insisted that upon the facts as heretofore stated, the suit should have been in the joint name of Welles and Wetmore, and the court of common pleas so ruled. Thereupon the plaintiff took a non-suit, and afterwards moved to have it set aside. This motion being overruled, he brings the question before this court by writ of error. We think the court of common pleas decided correctly. Had the suit been brought on the contract, there could have been no question but that Wetmore and Welles, constituting, as they did, but one party to that contract, must have sued jointly. The contract being rescinded, the question is, to whom does the implied promise to refund arise, to Welles alone whose money was advanced, or to Welles and Wetmore jointly, on whose joint account it was advanced? Was not the payment, in point of law, the payment of Welles and Wetmore, on a contract in which said Welles and Wetmore constituted but one party? The implied promise must correspond with the actual payment of the money, and the court cannot undertake in an action of assumpsit, to settle the accounts between Wetmore and Welles. Where the promise is made jointly to two, they must both join, if living, in the action, or they will be non-suited. Wright and others v. Post, 3 Conn. R. 142. So if a party covenant with A & B to pay an annuity to A, this vests a joint legal interest in A & B. although the former is to derive the sole [566] benefit; for only one duty was to be performed, and there could not be a separate legal interest therein. 1 Chitt. PI. li- lt may be said that this was a partnership limited to a particular undertaking, which failing, the partnership ceased. • This may be true, but the right of action upon an assumpsit originating during the partnership, must still vest in the partners, notwithstanding the dissolusion. The case of Shearman vs. Adkins, (4 Pick. R. 290,) determines this. In that case two persons had been appointed guardians of a spendthrift, and sold his real estate by virtue of a license granted by the court of common pleas, and applied the pi’oceeds to the payment of his debts, some of the debts being paid by one guardian, and some by another. The letters were afterwards revoked; the sales avoided, the license having been granted contrary to law, and the guardians were compelled to refund the money. It was held that the guardians had a right of action against the spendthrift’s administratrix for the amount refunded, as so much money paid by them upon a consideration which had failed, and that they had properly joined in the suit. They were considered as constituting but one party, when the payments were made, which was the foundation of the action. This established such an union of interest as authorized them to join in any suit for indemnity in consequence of a loss happening during their joint administration of the affairs of their ward. “It is true,” observed Parker, Judge, in delivering the opinion’of the court, “that their connexion is dissolved, but their interest remains joint as to any remedies they may be entitled to, on ac-acount of any joint transaction founded upon their relation to their ward.” So in the present case, the true question must be, was there a union of interest between Welles and Wetmore, when the payment was made, to recover which back this suit is brought? If such were the case, though the joint interest has ceased, the action to recover an amount accruing during its existence, and growing out of the contract which created the partnership, must be brought in the names of Wetmore and Welles. Gould v. Gould, 6 Wend. 263. Judgment affirmed.