59 Vt. 585 | Vt. | 1887
The opinion of the court was delivered by
The fourth count demurred to sets out a contract made by the plaintiff and Goff jointly of the one part and the defendant’s intestate of the other part, whereby certain stock and bonds of the Montreal, Boston and Portland Railway were sold to such intestate, and certain labor Avas to be done upon said railway as part consideration for such sale. It also avers the delivery of certain other bonds by said Angus
In' this posture of things the plaintiff discloses a perfected right of action in Angus and Groff to recover the unpaid purchase money of the stock and bonds sold, and also the bonds put up as collateral or their proceeds, if converted by the intestate to his own use.
The count further avers that after performance by Angus and Goff of the contract on their part, the intestate settled with Goff for his interest in the contract and his interest in the' collateral bonds; and the plaintiff’s contention is, that he may now maintain an action in his own name to- recover one-half the unpaid purchase-money and half the proceeds of the collateral bonds.
We think such action cannot be maintained.
The sale of the stock and bonds with the collateral undertaking to put the railway in running condition was the consideration of the intestate’s promise. The delivery of the collateral bonds was a mere incident of such sale — a mere security for the performance of the principal contract by Angus and Goff.
If Robinson had contracted with Angus and Goff severally for the share of each in the stock and bonds, and promised them severally to pay for such shares, it would be quite another thing. But however as between themselves the ownership of the stock and bonds in truth was, the declaration states their intex-estto.be “joint and equal,” and sets them out as joint contractors: and the principle that joint contractors must all sue upon their joint contract is too elementary to require the citation of authorities.
Robinson’s settlement then with Goff for his interest was in substance a satisfaction of the joint indebtedness pro tanto. What Goff received belonged to Angus and Goff, and the balance duo from Robinson belongs to them jointly. It is not the case of the novation of a contract.
The cases cited by the learned counsel for the plaintiff are not in conflict with this holding.
In Hall v. Leigh, 8 Cranch, 50, a consignee sold merchandize for two owners. But each owned one-half severally, which fact was disclosed in the consignment, and separate instructions for the sale'were made.
In Beach v. Hotchkiss, 2 Conn. 697, defendant had paid one of several joint contractors his share of the common debt, but had not liquidated the account with the others. Assumpsit cannot be maintained by the others severally for their share;
Some language is used by the court giving support to the plaintiff’s contention in the case at bar, but the result of the case is inconsistent with it.
In Austin v. Walsh, 2 Mass. 401, A & B jointly ship goods consigned to C to sell. After shipment A & B sever their interest in the adventure, and A gives B written directions to C to pay B his moiety. B shows this direction to C, who refuses to account to B, but says he will pay B if proceeds belong to him. It was held that the agreement between A & B to sever their interest would not entitle them to sue C severally unless after notice C had consented to it, and to account to each for his share. But as the action ivas not on the original contract, but on O’s promise to pay B if he was entitled, and he had shown he was entitled, he might recover.
Without further review, the true, rule appeal’s to be that where all the parties in interest in the joint contract agree to a severance of the joint interest, and the obligor promises to pay each his several share, each may sue therefor, the suit being based upon the promise to pay each severally, and not on the original joint promise.
The act of bringing the suit cannot in law be effectual to work a severance of the joint interest of Angus and Goff, and thus by way of a ratification of the unwarranted severance made by Goff and Robinson, give Angus a several action. The severance must first be made and a new promise must appear as the basis of the new right of action springing from the severance.
The judgment of the County Court sustaining the demurrer and adjudging the plaintiff’s new fourth count insufficient is affirmed, and the case remanded.
