James v. Aiken

47 Vt. 23 | Vt. | 1874

The opinion of the court was delivered by

Wheeler, J.

On the plaintiff’s evidence, the purchase of House was a joint purchase on a joint consideration. When the defendant offered to show that the sale “ was made to said parties by said House ” upon false and fraudulent representations that were actionable, he offered to show that which would constitute a joint right of action in favor of the purchasers against House. 1 Chit, Pl. 51; Patten v. Gurney, 17 Mass. 182; Medbury et als. v. Watson, 6 Met. 246. Baker v. Jewell, 6 Mass. 460, although sometimes cited to show that a joint action cannot bo maintained, in such a case, is not really in opposition to this view. That action was brought by the purchaser of one eighth of a mill and dam and water privilege, bought by him with other purchasers of the other seven eighths, for misrepresentations made in the sale, and, on objection that he could not maintain the action alone, it was held that he might, because he might alone have been defrauded. But in this case, according to the offer, all were defrauded together. The right of action being joint, was released by the release of the plaintiff and Jonathan James, Jr., two of the persons to whom it belonged, although they may not have undertaken or assumed to release more than belonged to themselves. No action could be maintained by the others except jointly with them, and in an action by all, their release would bar themselves, and with them, all would be barred, and the action defeated. Ruddock's case, 6 Co. 25; 1 Parsons Cont. 26; Wilson v. Mower, 5 Mass. 411: Bastman v. Wright, 6 Pick. 316; Pierson v. Hooker, 3 Johns. 68. The couplet on Ruddock's case in Coke’s reports, in verso, p. 31, is:

Ruddock. Release in actions personal,

By one of plaintiffs made, does bar them all.

According to the defendant’s offer, the plaintiff received one thousand dollars in consideration of this discharge. The defendant is unquestionably entitled to his share of this money, as much so as if the plaintiff had collected it on a judgment in an action for the fraud in favor of all. The offer was to show that the plaintiff received this money before he paid the notes to the payment of which he seeks to make the defendant contribute; and if he did, he had this money, which belonged to the makers of the notes jointly, with which to discharge their joint liability at the time when he discharged it; and to the extent that he so had it, he has never had any claim for contribution. The effect of this evidence would be to show that so far, no cause of action ever existed, and not njatfey in discharge of one that had once existed; and there would be no occasion to give notice according to the statute, ch. 30, §82, Gen. Sts., cited by counsel for the plaintiff.

Upon these considerations the judgment must be reversed.

The offer of the defendant as to damages sustained by him in consequence of the discharge, as set forth in the exceptions, does not specify how nor when he sustained the damages. It was suggested by Parsons, Ch. J., in Wilson v. Mower, that if one joint plaintiff in a personal action, and stated by Morton, J., in Eastman v. Wright, that if one joint contractor, unjustly releases the action to the injury of others, they may have a remedy by special action on the case. But without something more definite in this case as to such damages, it cannot be determined whether there is anything there that the defendant can avail himself of in any form, and if in any, in what form, in defense of this action.

Judgment reversed and cause remanded.