96 Me. 227 | Me. | 1902
Prior to Nov. 7th, 1899, the defendant occupied the Kveleth House in Greenville as the tenant at will of John H. Kveleth, who died on that date. The title to the premises descended, one-tliird to the plaintiff' and two-thirds to Rebecca W. Crafts, as tenants in common. The defendant continued to occupy the premises in the same manner after as before the death of Mr. Kveleth, and the plaintiff brings this action for the use and occupation of her share of the property from Nov. 7, 1899, to August 7, 1900.
This action can only be maintained by proof of a promise, express or implied. Goddard v. Hall, 55 Maine, 579. The evidence introduced by the plaintiff fails to satisfy us that there was an express
We think further, that not only has the plaintiff failed to show an express promise, but that if any promise is implied under the circumstances it must be considered joint as to the promisees. The consideration for the defendant's promise moved not from the plaintiff' alone, but from the plaintiff and her co-tenant, Mrs. Crafts. Where the consideration moves from several persons jointly, such persons, as having the joint legal interest in the contract, should be joined as plaintiffs in suing for a breach of it. Dicey on Parties, 106. Chanter v. Leese, 5 M. & W. 698. And it is a general principle that Avliere part oAvners sue ex contractu all the persons Avho are part OAvners must join. White v. Curtis, 35 Maine, 534.
This result is not in conflict Avitlx Nott v. Owen, 86 Maine, 98, 41 Am. St. Rep. 525, cited by the plaintiff. In that case the plaintiff owned one-fourth of the store, and there were separate express contracts betAveen the different OAvners and the. tenant. The plaintiff terminated the tenancy as to his one-fourth, arid brought suit for rent thereafter accruing, the express contracts Avith the other OAvners remaining in full force. It is evident that, under those circumstances, the only contract that could be implied Avith the plaintiff Avas separate, and the action Avas properly brought in his name alone.
In Kimball v. Sumner, 62 Maine, 305, the action Avas neither joint nor several, and for that reason Avas decided not to be maintainable. The court says that if the remedy pursued should be joint, “We think such a rule is founded upon principle and good sense, and may be fairly deduciblte from the authorities although the cases do not agree.” The suggestion there made that, Avhen the contract is made by implication of law, it is reasonable to alloAV the heirs to elect whether it shall be considered joint or several, is open to several
It is unnecessary to now consider the other objections raised by the defendant, as for want of necessary parlies plaintiff the entry must be,
ZYaintif nonsuit.