Clark v. Cable

• Decision Date: 31 March 1855
• Parties: CLARK, Plaintiff in Error, v. CABLE & BOFINGER, Defendants in Error.
• Court: Missouri Supreme Court

21 Mo. 223

CLARK, Plaintiff in Error,

v.CABLE & BOFINGER, Defendants in Error.

Supreme Court of Missouri.

March Term, 1855.

1. A., party of the one part, contracted in writing to sell to B. & C., parties of the other part, thirteen-sixteenths of a boat, in consideration of which, B. & C. agreed to pay a specified sum. A subsequent clause in the agreement provided that B. was to take an interest of nine-sixteenths, for which he was to give his own notes secured, and C. an interest of four-sixteenths, for which he was in like manner to give his notes. A. agreed to save B. & C. harmless from all liens and incumbrances upon the boat. Held, the contract was joint and not several, and after it was repudiated by B. could not be enforced against A. by C.

Error to St. Louis Circuit Court.

Action for the breach of a contract for the sale of a boat.

The petition stated that the defendant, George W. Cable, by an agreement between him, as party of the first part, and the plaintiff and defendant, Bofinger, as parties of the second part, sold to the latter thirteen-sixteenths of the steamboat L. M. Kennett, then on her way from New Orleans to St. Louis, in consideration of which said plaintiff and Bofinger agreed to pay him $26,000; that it was further provided in said agreement that the plaintiff took an interest of nine-sixteenths, for which he was to pay one-third in cash, and the balance in equal payments at three, six, nine and twelve months, with interest, for which he was to give his endorsed notes, secured by mortgage and insurance on the boat, and Bofinger took an interest of four-sixteenths, to be paid for by him in like manner; that the defendant, Cable, agreed to pay and keep harmless the said plaintiff and Bofinger from all debts, dues and demands against said boat, accruing prior to their receiving possession; that after the arrival of the boat at St. Louis, Bofinger having repudiated the purchase, so far as he was concerned, the plaintiff proposed to comply with his part of the agreement, and requested Cable to transfer and deliver to him nine-sixteenths of said boat, and also offered to take the four-sixteenths which Bofinger had agreed to purchase, on the same terms; but that the defendant, Cable, refused to transfer and deliver to the plaintiff either the nine or the thirteen-sixteenths of said boat. The petition further alleged that Bofinger refused to join as plaintiff, for which reason he was made a defendant. The plaintiff claimed damages for the breach of the contract. A demurrer to this petition was sustained by the Circuit Court, and the case is brought to this court by writ of error.

M. L. Gray, for plaintiff in error.

1. The contract was several, not joint. Not only did Clark and Bofinger take a separate and distinct interest in the boat, but each gave his separate notes for the interest purchased by him. (1 Chitty's Pl. 11. 1 Saund. 153, note 1. 11 Mo. Rep. 414. Thomas v. Pym, 4 Bibb, 420. Trustees of Perryville v. Letcher, 1 Monroe, 13. Ludlow v. McCrea, 1 Wend. 231. Ernst v. Bartle, 1 Johns. Cases, 327. Walker v. Webber, 3 Fairf. 60. Blakey v. Blakey, 2 Dana, 460.) 2. If Bofinger was not properly made a defendant, the suit may be dismissed as to him under the new practice act, and besides, it may be doubted whether that is a ground of demurrer by Cable.

J. A. Kasson, for defendants in error.

1. The contract was an entire one for the sale of thirteen-sixteenths of the boat, and the repudiation by Bofinger nullified the whole contract, and discharged Cable. ( Chambers v. Griffiths, 1 Esp. 150.) 2. There was a misjoinder of defendants. Bofinger had no interest in the suit adverse to plaintiff, (Prac. act of 1849, art. 3, §§ 6, 7,) and no judgment was asked against him.

SCOTT, Judge, delivered the opinion of the court.

There is nothing in the present practice act which affects the law of joint contracts. That act deals only with the mode of procedure, and does not affect the law of contracts, as it existed prior to its enactment. If, therefore, an obligation is executed to two jointly, they must both sue upon it. One of the joint obligees, without the concurrence of the other, cannot maintain an action upon a joint contract. Unless both agree, there can be no action upon it. The repudiation of the contract by one of them...