184 N.W. 206 | S.D. | 1921
’ This action is brought to recover -damages for breach of contract to convey title to .real estate. Defendant demurred to the complaint on the grounds:
“That there is a defect of parties plaintiff,” and “that the complaint does not state facts sufficient to constitute a cause of action.”
The demurrer was overruled and defendant appeals.
The contract on behalf of plaintiff and McMahon was a joint contract and could only be performed jointly. Under the terms of the contract, neither of them could have paid one-half of the purchase price and compelled defendant to deed him a half interest in the land. When defendant failed to> perform the contract on his part, any damage that accrued to plaintiff and McMahon accrued to them jointly.
Section 2313, Code 1919, provides that—
*346 “All persons having an interest in the subject of the action, and in obtaining the relief demanded, may be joined as plaintiffs, except as otherwise provided in this chapter.”
Section 2315 provides that—
“Those who are united in interest m'ust be joined as plaintiffs or defendants; but if the consent of any one who should have been joined as plaintiff cannot be obtained, he may be made a defendant, the reason therefor being- stated in the complaint. * *
Plaintiff and McMahon are united in interest, and should have been joined as plaintiffs, unless for some reason McMahon refused to join as plaintiff, in which case.the reason for his nonjoinder should have been stated in the complaint. There -is clearly a defect of parties plaintiff, and the demurrer should have been sustained.
• The order appealed from is reversed.-