7 Iowa 493 | Iowa | 1859
The plaintiff contends that, he is entitled to judgment against the delincpient defendant, by virtue of the rule. The defendant, on the other hand, insists that the law relating to joint defendants -on a joint contract, -is with him, and that the rule of court cannot prevail.
By the common law, when the makers of a .joint contract were sued, the plaintiff must obtain judgment against all, or against none. The spirit of this rule still pervades the law to a greater or less extent. Thus, if one defendant pleads a defense which goes to the substance of the contract, it must of course, inure to the benefit of the others. So, if his defense is to a part of the contract, but wholly destroys that portion, as a payment of part. There may be cases where the plaintiff may take judgment against one, for the whole of the contract. Such was the case formerly, in the territory of Iowa, where one could not be served. It is so, too, where one defendant pleads a matter which goes to his personal exoneration, but does not reach his • co-defendant. Infancy and coverture are such instances.
But in the case at bar, both contractors are in court. If the one pleads a matter which goes to the validity of the contract, or which is a defense for both, in its nature, on the whole or a part, and succeeds, the'books hold that the other, even though in default, takes the benefit of it. 1 Chit. Pl., 47, 50, 567; 1 Saund. R., 153, n. 1; 2 Tidd’s Pr., 803; Hall v. Rochester et al., 3 Cow., 374; Van Shaik v. Trotter, 6 Ib., 599.
We do not think that sections 1815 and 1816, or 1681 and 1682 of the Code, militate with this law. They are to be applied consistently with the'doctrines of the law upon joint contracts.
One of the defendants pleads usury, which would abate part of the contract. The judgment, if against both, must be joint, It would be absurd to render judgment against one for one amount, and against the other for another-