Hughes v. Oregon Railway and Navigation Co.

• Decision Date: 15 December 1884
• Citation: 11 Or. 437,5 P. 206
• Court: Oregon Supreme Court
• Parties: HUGHES v. OREGON RY. & NAV. CO.

5 P. 206

11 Or. 437

HUGHES v. OREGON RY. & NAV. CO.

Supreme Court of Oregon

December 15, 1884

Appeal from Multnomah county.

Williams Durham & Thompson, for appellant.

C.B Bellinger, for respondent.

WALDO, C.J.

By the statute of this state, a party for whose benefit a contract is made, and who thereby becomes the real party in interest may sue upon it. It makes no difference that the contract is under seal. McDowell v. Laev, 35 Wis. 171. It is next argued on the part of the respondent that the contract is joint, whereas the appellant has brought a separate action. The following citations will show the principle on which this point is to be decided. WASHINGTON, J., in Sawyer v. Steele, 4 Wash.C.C. 228, says:

"The rule of law applicable to this subject is laid down in Slingsby's Case, 5 Reporter, 19, which has never been departed from to my knowledge. It is that where the grantees are to take a joint interest in the thing granted, they must join in the action, although the covenant is made with them severally, and the reason assigned is that a man cannot, by his covenant, unless in respect of several interests, make it first joint and then several; but if the interests are several, then the covenant in respect thereof may be several." Metcalf, in his note to Rolls v. Yate, Yel. 177 says:

"Where the legal interest of two or more covenantees is joint, the action of covenant follows the nature of the interest, even though the covenant is joint and several. *** On the other hand, where the interest of two or more covenantees is several, though the covenant be joint each of them may bring an action for his particular damage."

In Withers v. Bircham, 3 Barn. & C. 254, the case in substance was this: A. covenanted with B. and C. that certain annuities payable severally to B. and C. by T. should be duly paid, and in case T. made default he would, as often as default was made, pay to B. and C. the said annuities, or either of them. T. made default in the payment to B. B. brought his action against A., and it was objected that the covenant was joint. But the court said:

"Looking only to the language of the covenant in this case it would appear to be a joint covenant, but the interest of the covenantees is several, each of them having a distinct interest in the covenant payable to him. The interest, therefore, being several, the covenant must also be several." See, also, Appleton v. Bascom, 3 Metc. 172.

So, in the case before the court, as R., H., and M. were jointly and severally liable on the Gaston bond, the covenant of indemnity will follow the bond, and be also joint and...