78 Mo. 521 | Mo. | 1883
Lead Opinion
The 'plaintiff's sue as joint obligees in a bond. The bond was executed by J ames Biddle, defendant, as sole obligor, in favor of the plaintiffs and the de
The instrument sued on is clearly a joint obligation for the payment of money. At common law no action could be maintained on it except in the names of all the obligees or their representatives. It is argued by the plaintiffs in error that this rule of the common law has been modified by section 3466 of the practice act, which reads as follows : “ Parties who are united in interest must be joined as plaintiffs or defendants; but if the consent of any one who should bo joined as plaintiff cannot be obtained, ho may be made a defendant, the reason thereof being stated in the petition.” R. S. 1879, § 3466. This provision has remained in the same language since the adoption of our code of practice. It embodies a rule familiar to equity pleaders, but was unknown at common law. The construction given to it in modern practice has not been uniform. In some states it has been applied to law cases. Hill v. Marsh, 46 Ind. 218; while in others it has been confined to equity cases. Andrews v. Mokelumne Hill Co., 7 Cal. 330. If it was still open for construction in this State, we might hesitate between conflicting constructions. Habicht v. Pember
In an action of ejectment brought in the name of the trustees of a corporation, one of the trustees appeared in court and as plaintiff asked leave to dismiss the case so far as it concerned him, which was refused by the court upon the other plaintiffs giving bond to indemnify him against costs. The learned judge giving the opinion in the appellate court held that there was no error in this action of the court for the reason that upon his refusal to join as plaintiff he might have been placed on the other side as defendant. McAllen v. Woodcock, 60 Mo. 174. The previous cases were not overruled or alluded to in the opinion. The rights and obligations of the plaintiffs as officers and trustees of a corporation present a marked distinction between them and the obligees of a note or bond, which would naturally forbid the result of overruling the previous cases on such instruments, in the absence of any allusion to them. These early cases have been accepted and followed by the profession for nearly thirty years, and there is nothing peculiar to the case at bar, which can justify a distinction in its favor.
Certain incidents flow from the nature of a joint obligation or rather an obligation enuring to joint obligees. They are joint proprietors, and one must have as much right as the other to say and determine when suit shall be brought and when it shall be compromised or settled without suit. Neither can sue alone for his proportion. 1 Parsons Con., p. 13. It has been settled in this State that one of two joint obligees of a contract has the power to discharge and release the joint obligation. This was recently held in the case of Henry v. Mount Pleasant Township of Bates Co., 70 Mo. 497, in which it was charged in the petition that the plaintiff’s co-obligee had fraudulently and col
It seems to. me the obligor of the contract is also interested in the mode of enforcing the obligation he has assumed. A suit against him by an obligee, although including the other obligee as defendant, necessarily involves an issue in which he is not interested, viz., a settlement of the interest or share belonging to each obligee respectively. This might involve the taking of a long account and the settlement even of a partnership.
For these reasons I am persuaded that the disability of the plaintiffs to maintain their suit in this form is an infirmity which inheres in the nature of the contract they entered into, and is not mere matter of form intended to be abolished by the practice act. The judgment is affirmed.
Dissenting Opinion
I cannot concur in the foregoing report. In my opinion Revised Statutes, section 3466, was intended to apply to all classes of actions. The code applies to all classes of actions, and, in adopting the rules of practice under it, its framers simply adopted many of the old equity rules of practice, because of their greater liberality and for the express purpose of abating the strictness of the old common law rules. It may as well be said