| N.D. | Jun 11, 1904
The complaint alleges a cause of action against the defendants for materials furnished them and for services rendered for them, in all of the value of $157.65. The defendants’ answer admits that plaintiff furnished materials and performed services for them and for other persons, and alleges that such other persons are
The principal specifications of error relate to a defect of parties defendant. The nonjoinder of the parties named as necessary parties was claimed as fatal to recovery against the three defendants served with summons, by motion at the close of the testimony, and on the motion for a new trial by specifications that the evidence is insufficient to sustain a verdict against the three defendants. Exceptions were also taken to the charge of the court submitted to the jury upon the theory that the defendants would be liable if the contract was several, or joint and several. We think that the specification that the evidence is insufficient to sustain a verdict against these defendants should have been sustained and a new trial granted. The nonjoinder of the persons named in the answer as necessary parties defendant is fatal to the recovery against the defendants.
The record discloses the following facts: About fifteen of the citizens of St. Thomas, N. D., by joint action and by joint contract or subscription, built a telephone system in the village for the use of subscribers only. The subscribers agreed in writing to pay their pro rata share of the cost of the materials for use in such system, and for the work of putting such system in working operation. After such system was constructed and in operation, it was ascertained that the cost thereof to each subscriber was $53, and the same was paid by each of said subscribers. Later, and in September, 1902, the system needed repairing and extension, as other persons desired telephones placed in their houses and became subscribers to the contract, agreeing that they would pay said sum of $53 if the system was extended to their houses. There were about 25 additional subscribers in September, 1902. The subscribers met, and appointed the defendants herein and one Nelson managing officers,
The record shows that they derived no pecuniary profit and were not to derive any profit out of the operation of the system. No revenue was to come in from the operation of the system. The system was an automatic telephone system, and no expense was incurred in its operation except for repairs. It does not, therefore, constitute a partnership under our statute defining a partnership as an association of persons for the purpose of carrying on business together and dividing its profits
It is necessary, however, to- determine with whom the contract was made, and what was the nature of the contract as to its being a joint, or a joint and several, obligation. If it was a joint obligation, all the members were necessary parties defendant and must be joined as such, if not waived by not properly raising the objection that there was a nonjoinder. If a several obligation, or a joint and several one, then all the subscribers or members need not be joined as defendants. In Harrison v. McCormick, supra, it was said: “It is well settled that parties to a joint contract must all be made defendants.” Section 271, Pomeroy’s Code Remedies, says: “When the liability is joint, all the persons upon whom it rests must be united as defendants in an action brought upon the contract. This rule is general, and applies to undertakings, obligations, and promises of all possible descriptions.” Our Code lays down the same rule. Section 5232, Rev. Codes 1899. In Harrison v. McCormick, supra, under the same statute, it is said: “The rule is well settled that several persons contracting together with the same party for one and the same act shall be regarded as jointly, and not as individually or separately, liable, in the absence'of any words to show that a distinct, as well as entire, liability was intended to fasten upon the promisors.” Obligations imposed upon, several individuals are presumed to be joint obligations, and not several. Such is the express language of section 3766, Rev. Codes 1899, and such is the general rule in the absence of statutory regulation. Parsons on Cont. (9th Ed.) vol. 1, p. 12; Elliott v. Bell, 37 W. Va. 834" court="W. Va." date_filed="1893-04-01" href="https://app.midpage.ai/document/elliott-v-bell-6594764?utm_source=webapp" opinion_id="6594764">37 W. Va. 834, 17
There are exceptions in special cases provided for by section 3766, Rev. Codes 1899, supra, but-none of them apply to the facts of this contract. In some cases all joint promisors need not be made parties defendant, but there is no showing here to bring the case within any of the exceptions. It is strenuously insisted by respondent that the evidence shows that the contract was made by these defendants for themselves, and that the other subscribers were not in any way mentioned by these defendants and plaintiff when the contract was entered into. The evidence conclusively shows the contrary, and shows that plaintiff was told by them that they were acting for the subscribers as their agents. Plaintiff says: “I knew these different.men I have sued were the board of control before, and I knew it from the start, * * * before I did any work at all.” He further says that he supposed these subscribers named in the answer were copartners for the purpose of keeping up the line, and that he learned who composed the board of control from Mr. Miller, a member of the board. The fact that plaintiff was informed
A direction of a verdict for the defendant at the close of the testimony would have been proper. A new trial should also have been granted on the ground stated in the motion for a new trial, to wit, that the evidence was insufficient to sustain the verdict. It was also error to charge the jury to the effect that if, at the time the contract was made and entered into, the plaintiff understood and believed that he was contracting with the defendants individually, and the defendants did not disclose to- or inform the plaintiff that the contract was not being made by them individually, but was being made by them as-the agents of others, then plaintiff must recover a verdict. There was no dispute in the evidence as to the contract, and what was said when it was made, in these respects. The court also charged the jury that if the contract was not a joint, but a several, contract, the plaintiff must recover, and that, if it was a joint contract, the plaintiff could not recover. The evidence being undisputed as to the terms of the contract and whether it was joint or several, this question should not have' been submitted to the jury, but the jury directed, as a matter of law, that t'he contract was a joint obligation, and that it created no- obligation against the defendants severally. Willcox v. Arnold, 162 Mass. 577" court="Mass." date_filed="1895-01-03" href="https://app.midpage.ai/document/willcox-v-arnold-6425136?utm_source=webapp" opinion_id="6425136">162 Mass. 577, 39 N.E. 414" court="Mass." date_filed="1895-01-08" href="https://app.midpage.ai/document/wentworth-v-s-a-woods-machine-co-6425156?utm_source=webapp" opinion_id="6425156">39 N. E. 414.
It follows, therefore, that the verdict must be set aside, a new trial granted, and the cause remanded for further proceedings according to law.