21 Mo. 223 | Mo. | 1855
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
The other judges concurring, the judgment will be affirmed.