Hedderly v. Downs

Berry, J. This action is founded upon a sealed agreement between plaintiff and one E. Hedderly, jointly, as parties of the first part, and defendants, jointly, as parties of the second. Prima facie, then, any action upon it against defendants should be brought by'the Hedderlys jointly, for, the cause of action being joint, the action must be joint also. Dicey on Parties, 11, 104. If anything has occurred to take the case out of this general rule, it should be alleged in the complaint and proved; but no understanding between the Hedderlys prior to the execution of the agreement could have any such effect, for the fact would still be that the agreement was made by and to them jointly. But if one of two joint parties upon the same side of a contract decease, the survivor, and he alone, can maintain an action on behalf of that side. 1 Chit. Pl. 19; Freeman v. Curran, 1 Minn. 144, (169;) Dicey on Parties, 128; Pom. Rem. § 126; Bucknam v. Brett, 35 Barb. 596; Daby v. Ericsson, 45 N. Y. 786; 1 Wait, Pr. 147. In the case at bar the agreement ran to the Hedderlys jointly; but, one of them having deceased, the survivor — the plaintiff — is the [186] proper party to bring an action thereon against defendants. Regularly, the plaintiff should have alleged the decease of E. Hedderly in the complaint, but his failure to do so is remedied by an allegation of the fact in the answer. Bennett v. Phelps, 12 Minn. 216, (326;) Shartle v. City of Minneapolis, 17 Minn. 284, (308;) Rollins v. St. Paul Lumber Co., 21 Minn. 5; Warner v. Lockerby, 28 Minn. 28; Lesher v. Getman, 30 Minn. 321. Upon the conceded facts of the case, this action was, then, properly brought by the plaintiff alone, upon the contract made by and with the two Hedderlys jointly. The case would appear to have been tried below and argued here upon notions of the law somewhat differing from those which we have expressed, and for that reason evidence was introduced, which, from our standpoint, was improper, but which was also immaterial and harmless. Order and judgment affirmed.