Clark v. Cable

Scott, Judge, delivered the opinion of the court. There is nothing in the present practice act which affects the law of joint contracts.' That act deals only with the mode of procedure, and does not affect the law of contracts, as it existed prior to its enactment. If, therefore, an obligation is executed to two jointly, they must both sue upon it. One of the joint obligees, without the concurrence of the other, cannot maintain an action upon a joint contract. Unless both agree, there can be no action upon it. The repudiation of the contract by one of them discharges the obligor. One of two joint ob-ligees can release a joint obligation. It is an infirmity attached to the contract from its nature. The co-obligee cannot complain, as it was his own act to enter into a contract with another, who would have the right to control it. This rule of law, therefore, cannot be affected, nor the obligor deprived of the benefit of it by bringing suit in the name of one joint ob-ligee, and making the other a defendant. The offer or willingness of one joint obligee to perform the contract on the part of all the obligees, does not vary the matter. The contract, as made by the obligor, is a joint one, and one obligee against his consent cannot make it a several obligation. The obligor cannot be subjected to two suits for one cause of action by several obligees. What becomes of the interest of that obligee who is made defendant? Will he, a defendant, recover damages as though he was plaintiff, when he has refused to join ? Will the plaintiff only recover his portion of the damages ? Suppose that the obligee who is made defendant says in his answer that he refused to join at the time suit was brought, because he was not ready with his proof, and could not be, when the cause would be tried. What would be done then ? These and many other difficulties beset us in attempting this new way of bringing [226] suits upon joint undertakings. (Slingsby’s case, 5 Coke, 19.) The words of the contract show that it was joint. The plaintiff, together with Bofinger, is called the party of the first part, and the defendant is termed the party of the second part. Thirteen-sixteenths of the boat are eonveyed jointly, and the promise to pay the consideration is a joint one, and the covenant against incumbrances is a joint one, and it is inserted after that part of the deed which, it is alleged, made it several. So the contract is joint in the beginning of it, and it is joint in the conclusion of it. Can any doubt exist that by the terms of the contract the plaintiff and Bofinger were ultimate sureties for each other to the full amount of the consideration agreed to be paid ? So much of the contract which relates to the part of the boat to be taken by each of the purchasers, and the mode of its payment, is an arrangement between the purchasers themselves, sanctioned, it is true, by the vendor, (the defendant,) not affecting the other provisions of the contract. If it is complied with, the obligation will be discharged ; but in the event of its non-fulfillment, the vendor is remitted to the general terms of the contract. There'is nothing in this portion of the contract which is inconsistent with the idea that the sale is a joint one. It is a rule of interpretation that subsequent words shall not defeat precedent ones, if by construction they may stand together. But where there are two clauses in a deed, of which the latter is contradictory to the former, there the former shall stand. The portion of the agreement relied upon as showing that it is several, is consistent with the other clauses of it, and they together make a whole contract, giving effect to all its parts, while the opposite construction takes away all effect from the most of its clauses. The words relied on, too, by the plaintiff are subsequent to those which make the agreement a joint one. No one will doubt but that the vendees might have jointly sued the vendor for refusing to convey the entire portion sold to them. This action is conceived on this supposition. Now, although a contract may be made in a way that the obligee may bring suit upon it at his election against the [227] obligors, either jointly or severally, yet a contract cannot be made in such a way as that the obligees may, at their election, join or not. As to them, it is either joint or it is several ; it cannot be regarded as both joint and several. If it is joint, all must sue ; if it is several, it cannot be sued on jointly. As this action is conceived in the idea that Bofinger might have joined as plaintiff, it cannot, at the same time, be several, so that each vendee may have his action upon it. This is clear law. (Slingsby’s case, 5 Coke, 19.) This much is said as to this action in its present form. But, from what has been stated, we are of the opinion that the agreement to purchase is a joint one, and one party cannot maintain an action upon it in whatever way he may sue. . , The other judges concurring, the judgment will be affirmed.