McNamee v. Carpenter

Adams, Ch. J. If the defendant is liable to Phebe King for one half of the note, it was his right to resist the recovery of judgment by plaintiff for the full amount. He might, indeed, resist any recovery, for defendant should be subjected to but one action. The Code contemplates that the joint owners of a note should, in a suit thereon, be joined as plaintiffs, unless some refuse to join, in which case the joint owners so refusing should be made defendants. Section 2548. The plaintiff, however, insists that the action was rightly brought, because the plaintiff held the legal title to the half owned by Mrs King, a,s well as to the other half. This position is based upon the fact that the note is payable to bearer, and the undisputed evidence was that Mrs. King delivered the note to plaintiff. But the plaintiff was as much entitled to possession as she was, by reason of the mere fact that he held the title to one half as administrator. We discover nothing in the evidence tending to show that Mrs. King, by delivering the note to the plaintiff, intended to affect her right or interest in the same. She may have intended that the plaintiff should put the note in suit, if not collected otherwise, but she doubtless supposed that if he did so he would cause it to be sued in the matmer required by law where a note is owned jointly by two persons.. It appears to us that the record does not show that the.plaintiff was entitled to [278] judgment. Having reached this conclusion it is unnecessary to consider the other points raised by the defendant. It will be time enough to consider them when the proper persons are made parties. Reversed.