11 Or. 437 | Or. | 1884
By the Court,
By the statute of this state, a party for whose benefit a contract is made and who thereby becomes the real party in interest may sue upon it. It makes no difference that the contract is under seal. (McDowell v. Laer, 35 Wis., 171.)
It is next argued on the part of the respondent that the contract is joint, whereas the appellant has brought a separate action. The following citations will show the principle on which this point is to be decided: Washington, J., in Sawyer v. Steel, 4 Wash. C. C., 228, says: “The rule of law applicable to this subject is laid down in Slingsby’s case, 5 Rep., 19, which has never been departed from to my knowledge. It is, that where the grantees are to take a joint interest in the thing granted, they must join in the action, although the covenant is made with them severally; and the reason assigned is, that a man cannot by his covenant, unless in respect of several interests, make it first joint and then several; but if the interests are severed, then the covenant in respect thereof may be severed.”
Metcalf in his note to Rolls v. Yato, Yelv., 177, says: “Where the legal interest of two or more covenantees is joint, the action of covenant follows the nature of the interest even though the covenant is joint and several. * *
In Withers v. Barker, 3 B. & C., 254, the case in substance was this: A. covenanted with B. and 0. that certain annuities payable severally to B. and 0. by Y., should be duly paid and in casé Y. made default, he would as often as default was made pay to B. and 0. the said annuities or either of them. Y. made default in the payment to B. B. brought his.action against A., and it was objected that the covenant was .joint. But the court said: “Looking only to the language of the covenant in this case, it would appear to be a joint covenant; but the interest of the covenantees is several, each of them having a distinct interest in the covenant payable to him. The interest, therefore, being several, the covenant must also be several.” (See, also, Appleton v. Bassom, 3 Met., 172.)
So, in the case before the court, as B. H. and M. were jointly and severally liable on the Gaston bond, the covenant of indemnity will follow the bond and be also joint and several. Whether it was competent for the parties to make it otherwise it is not necessary to inquire; for they have not done so in such positive and express terms as to exclude this construction under any view of the law. The appellant states in effect that he was severally charged on the Gaston bond, and,. consequently, a separate action is properly brought.
It is argued, lastly, that the appellant cannot recover in this action because it is expressly provided that the indemnity shall be “ in accordance with ” the indemnity provided for by the Gaston bond, which did not extend to the freight receipts; that the words in the indemnity clause “ and in accordance with ” control the words “ actions ” etc., preced
The construction is otherwise. .The signification given by counsel for respondent to the words “ and in accordance with” would imply that two classes of actions might have been brought against R. H. & M. oil the freight receipts— one in accordance with the bond, and another not in accordance with it. Now R. H. & M. were utter strangers to the freight receipts outside of the Gaston bond. They were liable to “actions,” etc., only because of this bond. It would have been meaningless to provide for indemnity against the freight receipts but for the bond. Every action brought against them on the freight receipts must, on its face, purport to be brought in accordance with the bond. When the parties, with this fact in view, stipulated an indemnity against all actions, etc., brought in accordance with the bond, the natural import of such language was an indemnity against all actions on the bond whether well or ill founded. Such actions would profess to be brought in accordance with the bond, and would, in fact, be brought in consequence of the bond, which may be taken as the equivalent expression. This being the construction, the appellant brings his case directly within Newburgh v. Gallatin, 4 Conn., 340.
Judgment reversed.