84 Neb. 633 | Neb. | 1909
Plaintiff, a partnership, in November, 1904, entered into a contract with defendants Dalheim, Jaschke, Johnson, and Sperling’s intestate, together with six other individuals. The agreement was signed by all parties thereto, and is as follows: “Capital stock, $3,000. Number of Shares, 10. State of Nebraska, Antelope county, Nov. 9, 1904. Champlin Bros., of Clinton, Iowa, agree to sell the imported French coach stallion to the undersigned subscribers, other than themselves, who wishing to improve their stock hereby promise to pay to Champlin Bros., or order, the sum of $3,000, the price of said
Plaintiff alleges that it 'duly delivered said horse to Stoner, one of the vendees; that it had fully performed its part of said contract; that six of the ten signers had paid their obligations to plaintiff, but that defendants had refused and still refuse to either pay cash or execute their notes as required by said agreement, whereby plaintiff had been damaged, etc. Plaintiff prays for a several judgment of $300 • against each of the four defendants. Defendants demurred because of the alleged misjoinder of parties, and because the petition did not state facts sufficient to constitute a cause of action against them. The demurrer was overruled. Defendants then answered, and alleged that the six vendees who were not sued had paid the purchase price of said horse; that there is a misjoinder of defendants, and various other defenses were interposed. All affirmative defenses were denied in the replies. At the close of plaintiff’s evidence the court instructed the jury to find for defendants, and from a judgment entered on that verdict plaintiff appeals.
Defendants allege that there is a misjoinder of defendants. Plaintiff treats the obligation of the defendants as several, and, accepting this construction of the agreement of the parties, which we think is possible, the liability, although several, arises as to all of the defendants upon the same contract. The transaction therefore is within the meaning of section 44 of the code, which provides: “Persons severally liable upon the same obligation or instrument, including the parties to bills of exchange and promissory notes, máy, all or any of them, be included in the same action at the option of the plaintiff.” The purpose of this section of the code is to simplify litigation and prevent a multiplicity of suits for a breach of the same contract, and the case at bar is an excellent example of the wisdom of the statute. Costigan v. Lunt, 104 Mass. 217; Wilde & Co. v. Haycraft, 2 Duv. (Ky.) 309. The motion to direct a verdict was therefore not proper upon the ground of a misjoinder of parties defendant.
The judgment of the district court therefore is reversed and the cause remanded for further proceedings.
Reversed.