42 N.J.L. 138 | N.J. | 1880
The opinion of the court was delivered by
The testimony in this case upon which the respective counsel argued this cause shows the following facts, which seem to stand uncontradicted:
Caleb A. L. Shinn, the plaintiff below, had signed an ap
His liability, as such surety, to pay that amount is not disputed.
Upon payment of this sum by Shinn, he had a right of action against George Wills, the principal on the bond. Lampleigh v. Barthwait, 1 Smith’s Lead. Cas. *222, and notes, De Colyar on Guaranties 311.
The case against William Wills and Moses Wills rests upon the following statement of Shinn : “ The defendants, George Wills, William H., Moses and Mary Wills, promised to give-me their joint obligation for the amount, or William Wills promised to get this note of the other parties; I never saw Moses Wills at all about the matter; I drew up a note, which-William took when we parted, after consulting with George and his wife; William was to take the note to Moses, and I presume he did so, for he brought the note back to me signed by George Wills and endorsed by William H. Wills and Moses Wills; it was endorsed by myself and the other bondsmen ; it would not go in bank, so William came and took it, and tore it up in my presence; I drew another note, which-George signed, and William was to take it and get Moses to sign it with him; I have never seen that note since.”
It is apparent that no action can be maintained against the-parties to the destroyed note. It never was delivered or had an existence as a contract. If it had been used as it was drawn to be used, namely, to be discounted in bank to raise-funds to' repay Shinn, he, as a co-endorser, could only have-sued, upon payment of the money due upon the note, for contribution. But it never was used.
The case, then, against William and Moses is, that they promised to go on a note to help refund to Shinn the amount he had paid for George Wills. Their promise, therefore,, amounted to a promise to assist in refunding to Shinn a portion of the debt which George Wills owed Shinn by reason.
As to the defendant William, it appears that he was also ■one of the co-sureties upon the original appeal bond with one Eli Bowker and Joshua Jones.
Upon the payment by Shinn of the entire amount due upon the bond, an action against each of these parties for contribution accrued to him, to recover an aliquot part of the money so paid. Stothoff v. Dunham, 4 Harr. 181; De Collar on Guaranties 349.
Assuming that the evidence taken at the trial was properly .admissible to show the execution of the appeal bond by Shinn, William Wills and others, the case made shows this state of facts: that the plaintiff had a right of action against George for the full amount, against William for an aliquot portion of the amount, and no right of action against the rest of the defendants.
The cause of action against the two against whom any liability arises is several; and the rule is elementary that ¡several distinct claims cannot be included in a single suit.
Had the plaintiff, at the trial, applied for an entry of a ■nolle prosequi in regard to all except one of the defendants, it would have been within the power of the court to permit it. Craft v. Smith, 6 Vroom 302. And even now, under the liberal construction given to the statute authorizing amendments, it would be within the power of this court, if necessary to advance justice, to allow that to be done which should have been done below. Price v. N. J. R. R. Co., 2 Vroom 229; Day v. American Popular L. I. Co., 10 Vroom 89.
But upon an inspection of the state of demand, it appears that the action was grounded entirely upon the verbal
The proof at the trial shows that the case was made thereupon that ground. Upon that ground, as we have seen, the plaintiff cannot hold his judgment. To shift the cause now to one of contribution against William, or for money paid for the principal, George, might deprive the defendant of a valid defence, upon some ground which the present phase of the-action would not suggest.
The appeal bond upon which the liabilities of these parties-would arise was not produced, nor its execution by the principal or sureties proven. The liability of one or all of the parties upon that bond might be a matter of contest in an action brought upon the implied liability arising from the act. of the plaintiff herein in making this payment. .
I think the judgment should be reversed, with costs.