Lee v. Bolles

20 Mich. 46 | Mich. | 1870

Guayes, J.

The plaintiffs in error sued the defendants jointly in assumpsit, and in stating their cause of action set forth an agreement in writing dated the seventh of September, 1868, between the defendant Bolles of the first part and the plaintiffs.of the second part, by which Bolles in consideration of the agreement by the plaintiffs to pay him a specified price promised the plaintiffs that he would, in a particular manner and by a specified time, remove a dwelling house, mentioned' in the agreement, and perform certain work upon and about said building. The declaration further set forth that such contract was executed on the 15 th of September, 1868, and that at such time the defendant Dickerson, executed and delivered to the plaintiff a certain paper writing in the words and figures following, that is to say: “For value received I hereby agree to become surety for the performance of the foregoing contract by the said Daniel Bolles. September 15 th, 1868. 0. J. Dickerson.”

The declaration then proceeded to aver a breach of the agreement, to perform the specified labor in and about the dwelling house, and claimed of the defendants a large amount of damages as resulting from such breach.

The defendants having pleaded the general issue, the parties went to trial before a jury.

The plaintiffs proved the execution of the two instruments set forth in the declaration, and that both were executed on the same day, and then offered them in evidence; but their introduction was resisted by defendants’ counsel on the ground, among others, that defendant, Dickerson, was not a joint contractor with defendant. Bolles, and that the defendants were not jointly liable. The Circuit Judge sustained the objection, and excluded the evidence, whereupon a verdict passed for defendants, and the question for us is whether this ruling of the Court helow was erroneous.

It is not deemed necessary to the determination of this question to discuss the distinction between the contracts of guarantee and suretyship, or to dwell upon the consequences flowing from such distinction. What we have to decide is, whether the plaintiffs by their declaration disclosed and set forth a joint undertaking on the part of defendants.

On a written agreement parties can only be sued in the manner in which they have made themselves liable, and whatever difficulty there is in ascertaining who are proper parties to be sued, must arise from an ambiguity in the writing. Barlour on Parties, j>. 118.

But whatever the difficulty in deciding who ought to be made parties, and who may be joined as defendants, it is incumbent upon the plaintiff, when he proceeds against two or more to show by his declaration that the defendants are jointly liable.

It is generally true that this will sufficiently appear when the declaration follows the words of the contract; but there are cases, and this appears to be one of them, where a simple transcription of the writings by the pleader will not suffice.

We think it was, at least, indispensable to a joint liability on the part of these defendants, that the two instruments signed by them respectively should not only have been contemporaneously executed, but that they should likewise have been made upon the same consideration. But whether the appearance of these requisites would have been sufficient to show a joint liability, is a matter on which we express no opinion.

The declaration avers that they were executed simultaneously, but it altogether omits to aver that the undertakings of defendants were upon the same consideration.

We cannot regard the acknowledgment of “value received]” in the instrument signed by Dickerson, as implying the same consideration for his promise, as that upon which the defendant Bolles undertook to perform the services specified in the other writing; and hence the declaration wholly fails in stating a 'cause of action against the defendants, involving a joint liability on their part.

We think, therefore, that the ruling of the Court below was right, and that the judgment should be affirmed with costs.

The other Justices concurred.