Burns v. Follansbee

McAllister, J. Where several parties are named as obligees or covenantees in a penal bond for the performance of covenants, and the covenants run to them jointly, and there is nothing appearing upon the face of the bond to show that the interests of such obligees or covenantees are several, then the law is inflexible that in an action upon the bond all -the obligees must join as plaintiffs, and there can be no recovery, except for damages in which all such obligees were interested. Damages sustained by a part only of such obligees are not recoverable in that action. Bradburne v. Botfield, 14 Mees. & Welsh. 559; Farni v. Tesson, 1 Black. 309; Ovington v. Smith, 78 Ill. 250; Safford v. Miller, 59 Ill. 205; Rees v. Peltzer, 1 Bradwell, 315. The covenants in the bond sued on are joint with all the obligees, and nothing appears on its face to show that the interests of the obligees were several. The evidence failed to show a joint interest of all the obligees and plaintiffs in the damages sought to be recovered, The instruction for plaintiffs directing a recovery for damages, in which a part only of the plaintiffs were interested, was clearly erroneous. We think also that the court erred in excluding evidence offered by defendants below, which would have tended to show that the counsel for whose fees the recovery was sought, were not, in fact, employed by the obligees in the bond, and had no right to look to them for their pay. The judgment will be reversed and the cause remanded. Judgment reversed.