41 Vt. 225 | Vt. | 1868
The opinion of the court was delivered by
This suit was originally commenced before a justice against the defendant Field alone. While the action was ponding before the justice, one Chas. R. Clough was joined as-co-defendant, and the suit thereafter proceeded before the justice against Field & Clough as partners. They recovered judgment before the justice, from which judgment the plaintiff appealed. On trial of the suit in the county court, that court ruled that there was no evidence tending to show that the firm of Field &
Section 78 of chapter 30 of the General Statutes provides that, “ In any action founded on a contract express or implied, or of account or book account, pending before any court in this state, in which more persons than one are defendants, the plaintiff shall be entitled to judgment against such as may be defaulted, and against those who shall 'upon trial be found liable, notwithstanding it shall be found upon said trial that all the defendants in said action are not jointly liable.” It is claimed by the defendant’s counsel, that where a suit is brought against several, in which they are declared against as joint debtors, a recovery must be had against all or none. Independent of the statute on the subject, this objection would be fatal to a recovery against either of the defendants in this action. But the statute is remedial in its character; it should be construed in reference to the principles of the common law, and receive such a construction as will repress the mischief and advance the remedy according to the intention of the lawgiver. We are agreed that the statute was intended to cover all cases of defendants in the actions to which it applies, whether the defendants are described and declared against as partners, or otherwise declared against on a joint contract. If the legislature had intended to limit the operation of the statute to a contract which is both joint and several, or to except from the provisions of the statute those cases where the defendants are declared against as partners, or otherwise
The statute of 1885 extended the rule of the court of chancery in relation to the joinder of parties, to actions at law upon contract. In the case of Nash v. Skinner, 12 Vt., 219, which was tried while the statute of 1835 was in force, the defendant Skinner, Henry Bulkley, Solomon Bulkley and Henry L. Sabin, the last three copartners under the style and firm of H. & S. Bulkley & Co., were sued, and declared against in the first count of the declaration, as joint promisors, and in the second count said Skinner and defendants Bulkley & Co. - were declared against as joint guarantors of a certain note. In that case it was claimed by the defendant, that, inasmuch as the declaration issued against Skinner and H. & S. Bulkley & Co., the plaintiff, to support his declaration, was bound to prove a joint contract made by them all; but the court in delivering the opinion in that case say: “Our statute (1885) provides that, when any of the defendants are not a party to the contract, the plaintiff may recover against the other defendants who are shown to have made the contract.” The statute of 1835 on this subject was repealed by the Revised Statutes of 1889. The provisions of the statute of 1851, as amended by the statute of 1852, are substantially the same -as those contained in sections 78 and 79 of chapter 30 of the General Statutes. In the case of Hurlburt v. Hendy et al., 27 Vt., 245, the court say: “ We see no reason to doubt that the statute of 1851 allows all courts in this state, in all actions ex contractu against more than one defendant, to render judgment against such as are found liable, and in favor of those not found liable.” In Powers v. Thayer et al., 30 Vt., 363, the court recognize the same principle. In the present case, if the writ had originally issued against Field Clough as partners, declaring against them as joint promis-ors, the declaration, under section 78 of the statute, would be treated sufficient to entitle the plaintiff to recover against both defendants, if found liable, and, by the same provision of the statute, it would be a sufficient declaration to entitle the plaintiff to judgment against either of the defendants, if found liable as a party to the contract, even though the other defendant was not
The judgment of the county court is affirmed.