Anderson v. Nichols
| Decision Date | 06 May 1919 |
| Citation | 107 A. 116,93 Vt. 262 |
| Parties | GEORGE ANDERSON ET AL v. E. M. NICHOLS |
| Court | Vermont Supreme Court |
February Term, 1919.
ACTION OF CONTRACT by eight plaintiffs jointly for breach of special contract. Heard on defendant's demurrer to the declaration at the March Term, 1918, Orleans County, Slack J., presiding. The demurrer was sustained, the declaration adjudged insufficient, and judgment for the defendant. The plaintiffs excepted.
Judgment affirmed.
W W. Reirden for the plaintiffs.
Frank D. Thompson for the defendant.
Present WATSON, C. J., POWERS, TAYLOR, and MILES, JJ.
If you contract with two or more jointly, and their interests are several only, your engagement, in the absence of controlling language, will be taken to be several, and each promisee should sue separately for his damages. Note, 1 Saund. 154; Beckwith v. Talbot, 95 U.S. 289, 24 L.Ed. 496; Emmuleth v. Home Benefit Assn., 122 N.Y. 130, 25 N.E. 234, 9 L.R.A. 704. This rule of the common law was, at an early day, approved and adopted as the law of this jurisdiction. In Geer v. School District, 6 Vt. 76, Judge MATTOCKS says, in effect, that in all actions on contracts suit must be brought in the name of the party who has the legal interest, though the form of the undertaking might require some one else to sue. And in Sharp v. Conkling, 16 Vt. 355, Judge REDFIELD, upon a consideration of the common-law authorities, asserts the fully established rule to be that, if the interest in the subject-matter secured by the contract is several, though the terms thereof are joint, the engagement will be taken to be several, unless such interpretation is excluded by the language used.
So it is that when the promise is to pay a group of persons a stated sum to be divided among them in proportions named, the engagement, ordinarily, will be joint and not several. 1 Parsons, * 13; Lane v. Drinkwater, 1 C. M. & R. 599; Byrne v. Fitzhugh, 1 C. M. & R. 613.
On the other hand, when payment is to be made not to the group, but to its several members, each to receive from the promisor his own share, the engagement, ordinarily, will be several and not joint. 1 Parsons, 19; Owings' Exrs. v. Owings, 1 H. & G. 484.
When tested by the above rule, the complaint before us breaks down. The interests of these plaintiffs are several. The consideration for the defendant's promise moved from them, not jointly, but severally; and this alone is enough to make that promise prima facie, several. 2 Page § 1142; Satler Lumber Co. v. Exler, 239 Pa. 135, 86 A. 793. Moreover, the contract set up in this complaint does not require the defendant to pay the sum specified to the plaintiffs, but binds him to divide it between them. So the defendant's promise though joint in form, is several in essence. In legal consequence,...
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... ... v. Morrison, supra. And so, ... also, two or more promisees, whose interests are several, ... must sue separately for damages. Anderson v ... Nichols, 93 Vt. 262, 264, 107 A. 116; ... Starrett v. Gault, 165 Ill. 99, 46 N.E ... 220, 221; Moore v. Terhune, 161 Ill.App ... 155, ... ...
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