93 Vt. 262 | Vt. | 1919
If you contract with two or more jointly, and their interests are several only, your engagement, in the absence of controlling language, will be taken to be several, and each promisee should sue separately for his damages. Note, 1 Saund. 154; Beckwith v. Talbot, 95 U. S. 289, 24 L. ed. 496; Emmuleth v. Home Benefit Assn., 122 N. Y. 130, 25 N. E. 234, 9 L. R. A. 704. This rule of the common law was, at an early day, approved and adopted as the law of this jurisdiction. In Geer v. School District, 6 Vt. 76, Judge Mattocks says, in effect, that in all actions on contracts suit must be brought in the name of the party who has the legal interest, though the form of the undertaking might require some one else to sue. And in Sharp v. Conkling, 16 Vt. 355, Judge Eedeield, upon a consideration of the common-law authorities, asserts the fully established rule to be that, if the interest in the subject-matter secured by the contract is several, though the terms thereof are joint, the engagement will be taken to be' several, unless such interpretation is excluded by the language used.
So it is that when the promise is to pay a group of persons a stated sum to be divided among them in proportions named, the engagement, ordinarily, will be joint and not several. 1 Parsons, * 13; Lane v. Drinkwater, 1 C. M. & R. 599; Byrne v. Fitzhugh, 1 C. M. & R. 613.
When tested by the above rule, the complaint before us breaks down. The interests of these plaintiffs are several. The consideration for the defendant’s promise moved from them, not jointly, but severally, and this alone is enough to make that promise prima facie, several. 2 Page, § 1142; Satler Lumber Co. v. Exler, 239 Pa. 135, 86 Atl. 793. Moreover, the contract set up in this complaint does not require the defendant to pay the sum specified to the plaintiffs, but binds him to divide it between them. So the defendant’s promise though joint in form, is several in essence. In legal consequence, it is a group of separate promises, and gives rise to separate actions in favor o’f thp several promisees.
We note, in passing, that the complaint contains the common counts in assumpsit, but as neither party makes reference thereto, we ignore them in disposing of the questions raised by the demurrer.
The defect in this declaration should have been corrected below. The Practice Act provides for. such cases. G. L. 1798. The fault was sufficiently pointed out by the demurrer (Reynolds v. Bean, 91 Vt. 247, 99 Atl. 1013), but instead of asking the court to act under the section just cited, counsel chose to litigate the question. In these circumstances it was not error for the court to neglect to act. Reynolds v. Bean, supra.
Judgment affirmed.