Colt v. Learned, 118 Mass. 380

Colt v. Learned

118 Mass. 380 | Mass. | 1875

Gray, C. J.

The written contract between the parties cannot be construed as creating a joint liability, without making PoEock, jointly with the two defendants, of the one part, contract with himself individually, of the other part. The manifest intention and the legal effect of the contract are that each of the three signers should assume the liability of one third of the sum named, and that each of the defendants should guarantee to Pollock, upon his paying the whole sum, the repayment of one third thereof. Upon the facts stated in the declaration, therefore, there is no joint liability of the defendants, but each of them is severaEy liable for 15000.

*382As the several contracts of the. defendants are created by one written instrument, they might, by the Gen. Sts. c. 129, § 4, be joined in one action. Grocers' Bank v. Kingman, 16 Gray, 473. But as their contracts, though similar, are not the same, but are for distinct though equal sums, those contracts should, by the express terms of that section, be stated in different counts. The remarks of a contrary tendency, in Costigan v. Lunt, 104 Mass. 217, 220, were unnecessary to the decision, which was that the case should stand for trial upon a declaration containing not merely a count alleging a joint contract, but also counts on the several contracts of each defendant. It follows that the declaration in the present case, containing a single count, alleging a joint contract and liability, is bad.

The cause assigned in the demurrer is that the declaration does not state a legal cause of action in accordance with the rules prescribed in the Gen. Sts. c. 129. Although the demurrer does not set forth the particulars in which the alleged defect consists, as required by § 12; and by § 23 no further pleading was required of the plaintiffs ; yet, by submitting the case to the judgment of the court, they joined in the demurrer, and cannot now object that it was informal. Bac. Ab. Pleas & Pleadings, N. 2.

Demurrer sustained, and judgment for the defendants.