33 Ill. 188 | Ill. | 1864
delivered the opinion of the Court:
The questions presented for our determination in these cases are the same, and they will be considered together. The actions are debt, and are brought upon an instrument by which the defendants acknowledge themselves bound unto nine persons according to their relative and respective several interests, in the penal sum of three thousand dollars, which is conditional that the railroad company shall, on the assessment of damages to be made to secure the right of way, pay to the obligees, relatively and respectively, the damages which may be assessed as aforesaid. The declarations allege the assessment of the damages of the plaintiff in each suit, and the non-payment of the same by the railway company; but it is not alleged that the damages of the other obligees have been assessed, nor is there any allegation in regard to the extent of their respective interests. The obligees were severally the owners of different tracts of land over which the railway company were proceeding to condemn a right of way, and the obligation was given to secure to them such damages as might be assessed to them severally in the proceedings for condemnation. It is evident that the interest of the obligees was several. A contract will be construed as joint or several, according to the interests of the parties appearing upon the face of the obligation, if the words are capable of such a construction. 1 Black (U. S.) 309. The instrument sued upon expressly states that the interests of the obligees are several, and we think its words are capable of the construction of an obligation to the obligees severally. The defendants in terms oblige themselves to the obligees, according to their relative and respective interests, to the extent of three thousand dollars. But while we hold the instrument to be a several one, upon which each one of the obligees may severally sue, yet no one of them- has a right to recover upon it more than his relative and respective share of the penalty. The declarations should have alleged the extent of the interests of the other obligees, and then it could have been determined what was the relative and respective right of the plaintiff. The ■obligees in their several suits upon the instrument are not to recover more than the three thousand dollars. If the damages assessed in favor of them all amounted to inore than the penalty of the instrument, each obligee can only recover his relative and respective share of that sum. The declarations do not show whether the plaintiffs were entitled to recover upon the instrument the whole amounts of their damages or a less sum. For this reason the demurrers should have been sustained. The judgments of the court below will be reversed, and the causes remanded.
Judgments reversed.
