Carlton v. Chouteau

Fuller, C. J. This is an action of assumpsit. The delaration is against the defendants, as partners and joint contract [104] ors, and contains tbe common counts only. Tbe defendants, Rice and Lowry, did not plead to it. Tbe other defendants pleaded non assumpsit. The Court below rendered judgment against Ilonry M. Rice and in favor of bis co-defendants: tbe Judge who tried tbe eause without a jury, finding by bis written decision, spread upon the-record, that there was no joint undertaking, but that tbe defendant, Rico, promised individually. We are not at all satisfied that Under tbe provisions of tbe Revised Statutes, pp. 343, 349, Chapter 70, an action can be commenced against joint contractors on a joint promise, and judgment rendered against one of them alone, on bis several promise ; and we leave that question undetermined. See Murray vs. Gifford, 5 How. Pr. Rep. 14 Voorhies' Prac. 229. But this action was commenced before tbe Revised Statutes took effect; and by Section 20 of Chapter 70, page 332, is expressly excepted from tbe operation of that Chapter. By tbe tbe common law, tbe plaintiffs must recover against all tbe defendants or none. Graham's Pl. 91, 95, 1 ch. P. C. 50 7 Term Rep. 352. Tbe District Court erred, therefore, in rendering judgment against one of the defendants, and in favor of tbe others, and tbe judgment must be reversed with costs of reversal, tbe eause remitted to the Court below, anda venire da novo issued. Order accordingly. It is unnecessary to decide tbe other questions raised upon tbe argument. We think, however, that tbe statement of facts found on the trial contained in the decision of tbe Court is not a sufficient compliance with the provisions of Section 41, page 356, R. S.