Decatur Fruit Growers Ass'n v. Kansas City Southern Railway Co.

Mr. Justice Baker delivered the opinion of the court. “At common law, if several defendants were joined in an action ex contractu, and all were brought before the court by service or appearance, it was absolutely essential to the plaintiff’s recovery that he should establish a joint liability;' in other words, he must recover against all or none; it was not competent to enter a judgment in favor of one defendant and against another.” 1 Black on Judgments, sec. 206. This rule has been declared and followed in a very large number of cases in this State. See cases cited in Cooper v. McNeil & Higgins, 43 Ill. App. 350, and 11 Encyc. of Pl. & Prac., 848. This rule is subject to the exception that where in an action ex contractu against two or more defendants one defendant pleads or gives in evidence matter which does not go to the action of the writ, and is a bar to the action as against himself only, and of which the other could not take advantage, judgment may be rendered for such defendant and against the rest. The reason of the distinction is that in the one case a verdict in favor of one defendant falsifies the averment of a joint promise, while such a personal defense does not falsify the averment of an original joint promise, but, admitting it, avoids it by proof of matter subsequent. The defense that the Santa Fe Company was not jointly liable with the Kansas City Company was not a defense personal to the Santa Fe Company. The other defendant had the right to question the joint liability of the defendants, and if the evidence showed that they were not jointly liable the plaintiff could not recover against the Kansas City Company. The legal effect of plaintiff’s statement of its demand in this case is an assertion that the two railroad companies, the defendants, jointly undertook and promised to safely carry the strawberries from Decatur to Colorado Springs. The verdict and judgment in this case is conclusive that the promise was not joint, and the plaintiff was not entitled to recover against either defendant. Pluard v. Gerrity, 146 Ill. App. 224. The judgment against the Kansas City Kailway Company will be reversed and the cause remanded. Reversed and remanded.