Boyd v. Kienzle

Bartol, C. J., delivered the opinion of the Court. The only question presented by this appeal, is whether the obligation set out in the declaration, and offered in evidence, is the joint or the several undertaking of the obligors whose seals are affixed thereto. ' The solution of this question depends upon the true construction of the instrument which is as follows: “ Whereas Peter Schneider is employed by the Baltimore County Brewing, Malting and Distilling Company, as the manager of said Company. And whereas the said Peter Schneider, is employed and authorized to purchase the malt and hops for said Brewery. And whereas each of the Directors of said Company have agreed to become [299] individually responsible in the sum of twenty-five hundred dollars each, for malt and hops, which the said manager shall purchase for the use of the said Brewery, during the space of one year from the date hereof. “Now therefore these presents witness, that in consideration that said Peter Schneider will undertake said authority and employment, and that dealers in hops and malt will sell to him upon the faith of this bond; we bind ourselves, and each of us, our and each of our heirs, executors and administrators, in the sum of twenty-five hundred dollars each, making in all the sum of thirty thousand dollars, for the payment of hops and malt which the said Peter Schneider may purchase for the use of the said Brewery during the space of one year from the date hereof; and we and each of us agree and promise, that we will pay such hops and malt bills, in total not exceeding the sum of thirty thousand dollars, or twenty-five hundred dollars each, in the manner and at the time the said Peter Schneider shall agree to pay them. “Witness our hands and seals this the 22d day of December in the year of our Lord one thousand eight hundred and seventy-three.” This bond is signed and sealed by twelve persons who are jointly sued in this action. In the construction of this paper, as in the construction of all written instruments, the cardinal rule to be observed is to ascertain the intention of the parties, as this is expressed on the face of the paper. In Chitty on Contracts, vol. 1, 1354, the author says : “ If two or more persons, who have joined together in a contract ‘ covenant severally ’ or become severally bound, it is (in the absence of express words implying a joint liability) the same as if each of the covenantors had executed a separate deed on the same paper. A joint action cannot, consequently, be maintained against the parties to such a contract, but each must be sued separately upon the sepa [300] rate contract made by each. But in order to constitute a separate liability only, in those cases where several persons contract together for the performance of a particular act, the intention must be plainly apparent by express words. This intention is to be gathered from a careful consideration of the whole tenor and general intent of the contract, and not from any particular words of severalty contained in it.” Now looking carefully at the instrument before us, and construing it all together, and in all its parts, we have had no difficulty in arriving at the conclusion, that it is a contract by which each of the obligors has bound himself severally for twenty-five hundred dollars only. The preamble recites that “each of the directors of the company have agreed to become individually responsible in the sum of $2500 each, for malt and hops which the manager shall purchase.” And in the binding part, distributive and not collective words are used “we bind ourselves and each of us, our and each of our heirs, &c. in the sum, of $2500 each, making in all $30,000, &c.,” and “we and each of us agree and promise that we will pay such hops and malt bills, in total not exceeding the sum of $30,000, or twenty-five hundred each,” &c. These words, the appellants contend, import a joint obligation, binding the parties jointly in the whole sum of $30*000 ; but we think it very clear, that such is not the true construction of the bond, nor according to the intent and meaning of the parties, which was- in no event to be bound, except severally, and each in the sum of $2500 and no more. We have examined all the authorities cited by counsel, and several others, and have found none which sustain the appellants’ views. The construction of the contract in this case depends entirely upon its own terms, and very little aid can be derived from a reference to decided cases, in which the phraseology of the papers under consideration, is not identical with the one before us. We think [301] however the decisions in Fell vs. Goslin, 7 Exch., 185 ; Lee vs. Nixon, 1 A. & E., 201, (28 E. C. L., 67;) Collins vs. Prosser, 1 B. & C., 682, (16 E. C. L., 146;) Williamson vs. Chiles, 5 Iredell, (Law R.,) 24:4, and Parrish vs. The State, 14 Md., 246, are analogous to the present in many respects, 'and tend to support the opinion we have expressed as to the proper construction of the obligation,- on which this suit is brought. If a question arises whether a covenant be joint or several with respect to the covenantees, that is to say whether parties claiming the benefit of the covenant must sue thereon jointly or may sue severally, regard must be had to the interests of the covenantees in the covenant. Lahy, &c. vs. Holland, 8 Gill, 446; Jacobs vs. Davis, 34 Md., 204, 210, 211. The cases of Keightley vs. Watson, 3 Exch. R., 723, and Bradburne vs. Botfield, 14 Mees. & W., 559, cited by the appellant were cases in which the question was whether the covenant was joint as to the covenantees, and the consideration of the nature of their interests in the subject-matter entered into, and formed the ground of the decision. But this rule lias no application in the construction of a covenant with respect to the obligation of the covenantors, in determining whether they are bound jointly, or jointly and severally, or severally only, and the extent of the obligation. Platt on Cov., 123, 124, (3 L. Lib., 55 ;) 1 Parsons on Contracts, 14, (notej,) where it is said, “The language of severalty or joinder, and not the interest, is then the test of the quality of the covenant quoad the covenantors. Enys vs. Donnithorne, 2 Bur., 1190.” We think the learned Judge of the Superior Court was clearly right in construing the obligation as several and not joint, and that this action cannot be sustained. We have considered it proper to express our opinion upon the main question, which has been fully argued by counsel, but as it appears, the plaintiff below voluntarily [302] suffered judgment of non pros., and no final judgment was entered in the cause, no appeal lies. See Evans’ Practice, 314; Graham, &c. vs. Parran, &c., 5 G. & J., 489; State, use of Boone vs. Bryan, &c., 3 Gill, 388, and Kempland vs. McCauley, 3 T. R., 436. (Decided 8th March, 1877.) Appeal dismissed.