Terry v. Brightman

132 Mass. 318 | Mass. | 1882

Field, J.

If neither Terry nor Brightman were a part-owner of the steamer, Terry could not maintain an action at law on the agreement, because the covenants are not with him, or, if the seals are disregarded, the promise is not to him; the agreement is between the owners of the steamer of the first part, and Clay and Brightman of the second part, and does not purport to be between Terry as one contracting party, and Clay and Brightman as the other. Chesterfield Colliery Co. v. Hawkins, 3 H. & C. 677, 692. Rogers v. Union Stone Co. 130 Mass. 581. Exchange Bank v. Rice, 107 Mass. 37. Fairlie v. Fenton, L. R. 5 Ex. 169. Montague v. Smith, 13 Mass. 396, 404. Abbey v. Chace, 6 Cush. 54. Goodenough v. Thayer, ante, 152.

As Terry was one of the owners and Brightman was another, Terry cannot maintain this action as one of the owners. He cannot sue as part-owner without.joining the other part-owners with him. as co-plaintiffs; and, if all the owners were joined as plaintiffs, Brightman would be both a plaintiff and a defendant. The agreement, having been made by all the owners jointly with one of their own number, cannot be enforced at law. Eastman v. Wright., 6 Pick. 316. Thayer v. Buffam, 11 Met. 398. Hatsall v. Griffith, 2 Cr. & M. 679. Chanter v. Leese, 4 M. & W. 295.

The agreement cannot be construed as having been made by all the owners but Brightman as party of the first part, for the purpose of chartering and letting their portions of the steamer to Clay and Brightman; it purports to charter and let the whole steamer, and the money to be paid therefor is distributable among all the owners.

Judgment for the defendant Brightman.