Dodge v. Wilkinson
44 Mass. 292
Mass.
1841
Check Treatment
Shaw, C. J.

The exception of misjoinder of plaintiffs not having been made at the trial, we think it now comes too late. It is an exception which, if taken at the trial, might have been obviated by an amendment. The ample power, now given to courts, to allow amendments without costs, renders this objection comparatively unimportant, when it does not affect the merits of the case. When therefore any of the plaintiffs may recover, the exception of misjoinder should regularly be made at the trial. If not made then, it is waived.

The court are of opinion, that the. defendant was not bound by the express agreement, beyond the sum therein expressed ; which has been paid. Nor is that agreement conclusive evidence of his equitable proportion of interest in the subject matter of the agreement. He may have agreed, and bound himself by his contract, to pay more money than his equal proportion of the specific sum given for the first cost. But so far *297as be is liable, on an implied promise, for charges and expenses subsequently incurred in pursuance of his agreement, made before he conveyed away his estate, we think he is liable for his just proportion thereof, according to his proprietary interest. By entering into the agreement to raise the reservoir, he became liable in equity to contribute to the expenses necessarily incident thereto ; and that personal liability was not discharged by after-wards conveying away the estate.

Judgment for the plaintiffs, for $209.99, and interest from December 20th 1836.