Marshall v. Jones

11 Me. 54 | Me. | 1833

The opinion of the Court was delivered by

Pabbis J.

It is competent for a defendant, in an action founded upon contract, to shew in defence that there are other persons than the plaintiff interested in the subject matter in litigation, and who ought to be joined as plaintiffs in the suit. — It is not necessary to plead such matter in abatement, but it will defeat the action if proved, as it may be, under the general issue, in any stage of the proceedings. The plaintiff has declared in general indebitatus assumpsit for money had and received, work and labor performed and money paid, laid out and expended.

No proof was offered in support of the first and third counts, and the only proof introduced by the plaintiff in support of the second count, for work and labor, was the testimony of a witness who labored in a ship-yard on a vessel built by the plaintiff, and who testified that the plaintiff appeared to have the sole control of the yard. This vessel the defendant received, and, as he contends, under a written contract made with the plaintiff and one Abner Winslow, and that if he is answerable at all, it is under the contract, and not on a general count for work and labor; — it is to Marshall and Winslow jointly, and not to the plaintiff.

To prove that Winslow ought to have been joined as plaintiff, the defendant offered the written contract which purported to be executed by the plaintiff and Winslow on the one part, and by the defendant on the other, for building a vessel similar to the one which was built; and also another contract signed subsequently by the same parties, containing some modifications of the former contract. It also appeared from the testimony of the plaintiff’s wdtness that he received some pay for his labor from Winslow, who was often in the yard ; —■ and that both Winslow and the plaintiff said, frequently, that they built the vessel together. The plaintiff contends that, inasmuch as the defendant has not fulfilled the -written contract on his part by paying for the vessel, he cannot make use of it in defence.

But we are not aware of any principle or authority by which such a position can be sustained-. The parties, having entered into a special contract are to be governed by it, and the law will enforce its execution, and look to it for the rule of damages, in case either party fail to fulfil it. Where the terms of the special contract are performed, general indebitatus assumpsit will perhaps lie, but the special contract is not thereby necessarily excluded. If by that the damages are stipulated, the law will hold the parties to their own estimate. The special contract is not to be infringed by a resort to the general counts. The defendant may-use it to show that the plaintiff has not performed the contract on his part, and thereby defeat the action on the general count. He may use it to shew that he is liable to others, as well as the plaintiff, for the.damages sought to be recovered, and thereby defeat the action for want of proper parties; or he may introduce it as evidence that the parties have agreed upon the rule of damages, and thereby prevent the recovery of any greater sum than that specified in the contract. Where there is a Special contract, the plaintiff cannot recover in indebitatus assumpsit, the stipulated price, unless there has been a complete performance on his part; — nor then, if by such recovery the terms of the contract wmuld be infringed.

The ruling of the Judge in receiving the written contract as evidence was undoubtedly correct; and by that contract, as well as by the testimony of the plaintiff’s witness, it is manifest that Winslow was jointly interested with the plaintiff, and ought to have been joined, unless there had been a severance of the plaintiff’s claim from the joint claim by a settlement between the defendant and Winslow of Winslow’s part. Of that there was no evidence. The plaintiff’s statement on the trial, that he and Winslow had formerly commenced an action against the defendant in the Province of New Brunswick, shews that the claim was then considered joint, and that it was necessary to prosecute in the name of both; and the additional statement that the action was settled by Winslow with the defendant, if proved, would not amount to a severance, unless it appeared further that the defendant paid Winslow his share of the demand only, and that the balance, to which the plaintiff was entitled, remained unpaid. The Case does not shew that to have been the fact. The offer to settle, while the defendant was under arrest on mesne process in this action, is no evidence of severance. It does not appear that he knew that the suit was in the name of the plaintiff alone; — and if he did, the offer on his part is to be regarded as a proposition to buy his peace, and not to be used as evidence in determining his legal rights. There must be

Judgment on the verdict.