Erwin v. Devine
| Decision Date | 14 April 1829 |
| Citation | 24 Ky. 204 |
| Parties | Erwin v. Devine. |
| Court | Kentucky Court of Appeals |
Misjoinder. Liability. Joint. Several. Verdict. Non-suit. Allegation. Proof.
ERROR TO MONTGOMERY CIRCUIT; SILAS W. ROBBINS, JUDGE.
Crittenden and Triplett, for plaintiff.
Daniel, for defendant.
Devine brought an action of assumpsit against the plaintiff in error and seven others, to recover their rateable proportions of $100, which he alleged he had expended for their use. The declaration so far as it sets out a cause of action against the defendants, for their rateable proportions of $100, is clearly defective, for it proceeds against the defendants jointly, for what is clearly a separate liability. This defect was by an amendment of the declaration attempted to be cured. The amendment avers that Devine, at the request of the defendants, laid out and expended $100 for their use and benefit, thus charging a joint liability on the defendants for the whole sum. On the trial, the jury found a verdict against the plaintiff in error, for $33 in damages, and found in favor of all the other defendants. This verdict can not be sustained. Devine, by amending his declaration, placed his right to recover upon a joint undertaking of all the defendants, and unless he proved a joint assumpsit, the court should have instructed the jury to find, as in case of a non-suit, on the application of the defendants. See 1 Chitty, 31, for the general rule in actions, in form ex contractu, where there is more than one defendant. There may be exceptions to it, but the present case is not an exception. We are of opinion that the evidence did not shew a joint liability on the part of the defendants, and that the court erred, in refusing to instruct the jury, as in case of a non-suit. It is unnecessary to notice the other errors assigned.
If a plaintiff join two or more, in an action of assumpsit, and declare on a joint promise, undertaking or liability, and the evidence proves only one to be liable, a verdict against him, and in favor of the residue, is erroneous. A non-suit should have been ordered.
The judgment of the circuit court must be reversed, and the plaintiff in error must recover his costs.
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