Himes v. Schmehl

• Decision Date: 28 March 1919
• Docket Number: 2427.
• Citation: 257 F. 69
• Parties: HIMES v. SCHMEHL.
• Court: U.S. Court of Appeals — Third Circuit

257 F. 69

HIMES v. SCHMEHL.

No. 2427.

United States Court of Appeals, Third Circuit.

March 28, 1919

Edmund B. Seymour, Jr., of Philadelphia, Pa., for appellant.

Thomas L. Hoskins, of West Chester, Pa., for appellee.

Before WOOLLEY, Circuit Judge, and HAIGHT and MORRIS, District Judges.

MORRIS District Judge.

The appellant, Hiram C. Himes, of New Jersey, plaintiff below and his co-owner Edmund B. Seymour, Jr., of Pennsylvania by joint contract of lease demised a graphite mine and its equipment to the defendant, Harry A. Schmehl, of Pennsylvania. This suit arises out of that contract and is brought by Himes alone. The contract, made a part of the bill, does not disclose the respective interests of the lessors in the demised property. The rent is made payable to the lessors jointly; not severally as their interests may appear. The remaining covenants likewise run to the lessors jointly. The bill of complaint alleges the ownership in fee by Himes of thirty-one fiftieths interest in the mine, the failure of defendant to account as required by the lease for one-half of the product of the mine reserved as rent, breach of the covenant for good mining, the removal of certain fixtures and other property of lessors from the demised premises, and that the extent of the removals is unknown to the plaintiff. The bill also alleges an indebtedness of the defendant in the sum of $400 for money loaned to him by Himes and Seymour, and a further indebtedness of the defendant in the sum of $75 for money loaned to him by Himes. The bill prays discovery and an accounting for thirty-one fiftieths of the value of the property removed, and for a like share of the rent reserved.

The bill was dismissed under equity rule 29 (198 F. xxvi, 115 C.C.A. xxvi) for nonjoinder of Seymour as party plaintiff and for want of jurisdiction. From this decree, plaintiff appeals.

It is an elementary rule of the common law that, where a contract is joint and not several, all the joint obligees or covenantees who are alive must be joined as plaintiffs. Farni v. Tesson, 1 Black, 309, 17 L.Ed. 67. A joint contract with several cannot be enforced by one of them alone. Cannon v. Maull, 4 Har. (Del.) 223. In Marys v. Anderson, 24 Pa. 272, the court applied the rule that, where the contract is joint, so also is the remedy, and held that one tenant in common may not maintain an action to recover his share of the rent from the lessee where the lessee's contract is to pay the rent as a whole to all the lessors. Mr. Justice Daniel, in Calvert et al v. Bradley et al., 16 How. 580, 597 (14 L.Ed. 1066), said:

'But in this same lease there is a covenant between the proprietors and the lessee that the latter shall keep the premises in good and tenantable repair, and shall return the same to those proprietors in the like condition, and it is upon this covenant or for the breach thereof that the action of the plaintiffs has been brought. Is this a joint or several covenant? It has been contended that it is not joint, because its stipulations are with the several covenantees jointly and severally. But the answer to this position is this: Are not all the covenantees interested in the preservation of the property demised, and is any one or a greater portion of them exclusively and separately interested in its preservation? And would not the dilapidation or destruction of that property inevitably affect and impair the interests of all, however it might and necessarily would so affect them in unequal amounts?

'It would seem difficult to imagine a condition of parties from which an...