Morris v. Davis

• Decision Date: 29 May 1895
• Citation: 31 S.W. 850
• Parties: MORRIS v. DAVIS et al.
• Court: Texas Court of Appeals

31 S.W. 850

MORRIS v. DAVIS et al.

Court of Civil Appeals of Texas.

May 29, 1895.

Appeal from district court, Baylor county; W. R. McGill, Judge.

Action by M. Davis and others against Ida R. Morris and others. From a judgment for plaintiffs, defendant Morris appeals. Modified.

D. A. Holman, for appellant. Dalton & Newton and Glasgow, for appellees.

HEAD, J.

On the 10th day of February, 1890, a large number of persons (about 100) subscribed the following instrument for different amounts: "Seymour, Texas, February 10, 1890. We, the undersigned, hereby agree to pay the amounts set opposite our names below to whatever parties or persons shall subscribe and make a bond to procure the building of a railroad to the town of Seymour by October 1, 1890. This obligation is made to secure the building of a railroad to the town of Seymour by October 1, 1890, and this obligation is payable to whatever persons shall make and execute a bond payable to any person or corporation to secure the building of said road, and this obligation is payable in installments in like manner as the bond shall be payable, and we agree to make and execute all necessary written obligations and guaranties to make this obligation good, and said obligations may be made payable either to any railroad company or to the persons who make bond to any railroad company." On the 18th day of March, 1890, 53 persons executed to the Wichita Valley Railway Company a bond as contemplated by the above instrument. This bond stipulated for the payment by the makers thereof to the railway company of $30,000 in four installments, and also for the securing of the right of way through the county. All of the makers of this bond except about three were also subscribers to the instrument of February 10, 1890. At the time the bond to the railroad was executed, the makers thereof also executed, as between themselves, the following instrument: "The State of Texas, County of Baylor. We, the undersigned subscribers and makers of a bond of even date herewith in the sum of $30,000, and for other purposes therein set forth, payable to the Wichita Valley Railway Company, said bond being signed by us at the time of the signing hereof, and which is here referred to and made part of this agreement, hereby agree among ourselves that if, after each of us has paid our subscription in full heretofore made by us, and after we have collected all possible from the other subscribers to said railroad subsidy, and all that we may be able to collect from other sources, there should remain any money due by us on account of said bond, that we will prorate such sum so remaining due among ourselves, according to the amounts of our respective subscriptions to said railroad subsidy; and we do each of us agree to pay such proportion of said sum remaining due as our said subscriptions bear to the whole amount subscribed by the obligors on said bond. Witness our hands, this 18th day of March, A. D. 1890." As is usual in such cases, a number of the subscribers to the instrument of February 10th failed to pay their subscriptions, and a number of the makers of the bond to the railway company failed to discharge their part thereof. A suit by the company against its obligors followed, which resulted in a judgment in its favor, to satisfy which 26 of the makers of the bond were required to pay a large amount above their pro rata shares. The appellant, Ida R. Morris, was a subscriber to the instrument of February 10th to the amount of $6,000, and was also one of the makers of the bond to the railway, and of the collateral agreement between such makers, copied above. She paid upon her subscription the sum of $4,500 only, and was not one of the twenty-six who contributed otherwise to the payment of the judgment recovered by the railway. After the payment of this last-named judgment, the 26 who thus claimed to have paid more than their shares joined as plaintiffs in a petition against their comakers of the bond to the railway, and asked for judgment for contribution against them as to such overpayments, and also for the balance alleged to be due upon their subscriptions to the paper of February 10th. To this petition appellant filed numerous and lengthy exceptions, complaining, among other things, of a misjoinder of parties and causes of action, and of the impossibility of making the adjustment upon the basis of the agreement made between the makers of the bond to the railway, as appellees were seeking to have done. These exceptions were overruled, and a trial before the court without a jury resulted in a judgment in favor of the plaintiffs against each of 22 of the defendants for a separate amount, the one against appellant being for "$2,869.36 principal, with 6 per cent. Interest from March 17, 1892, aggregating $3,170.60." This judgment did not attempt to adjust the recovery as between the plaintiffs, who are shown to have contributed in unequal amounts in making the payment to the railroad. The judgment against appellant included the $1,500 unpaid upon her February subscription, as well as the amount found to be due as her part of the overpayments made by the 26 plaintiffs upon the bond to the railway company. The costs were adjudged as follows: "That plaintiffs do have and recover of each defendant all costs incurred by each defendant and by plaintiffs in prosecuting this suit as to that defendant, and that the costs incurred by plaintiffs in the prosecution of this suit as to all the defendants,—that is, the costs common to all the defendants,—be, and the same are hereby, adjudged against all the defendants not dismissed, and each is adjudged to pay his or her aliquot part or equal share of the same."

The writer is of opinion that appellant's exception to the misjoinder of causes of action should have been sustained. It will be observed that an exceedingly complicated equitable suit for contribution by 26 makers of a bond against 27 of their comakers has been joined with a suit against several of the same defendants to recover their individual subscriptions in different amounts, evidenced by a separate instrument. In the opinion of the writer, the liability of the subscribers to the instrument of February 10th is as distinct and independent as though they had given their individual notes for the several amounts so subscribed. Dicks v. Austin College, 1 White & W. Civ. Cas. Ct. App. § 1068; Darnell v. Lyon, 85 Tex. 455, 22 S. W. 304, 960. That a single suit cannot be maintained against several defendants upon distinct demands, although the plaintiffs be the same, is elementary. That subscriptions of the kind in question have been heretofore regarded as distinct demands against the subscribers, within the meaning of this rule, I think must be conceded. In fact, I do not call to mind a single case in which it was even attempted to join all the subscribers to such an instrument as defendants in one suit. In the Dicks Case, supra, the liability of the subscribers was regarded by our commission of appeals as so distinctly several, and not joint, that it was held that one of them who had not paid his subscription could, as county judge, try the cases against the others. Why, then, should appellees have been allowed to prosecute to final judgment against appellant, Benge, and others one suit upon their separate subscriptions to the instrument of February 10th, over the objection of the former? If this should not have been allowed as a separate proceeding, it seems to me a fortiori it should not have been permitted when complicated with an additional and independent suit between these parties, as well as numerous others, growing out of their alleged liability for contribution as makers of a bond to a third party (the railway company). The diverse nature of the defenses that would naturally be interposed to these two independent causes of action, it seems to me, should suggest the propriety of keeping them separate. Not only was the joinder of causes of action permitted in this case, but the recovery itself was so joined and blended together as not to disclose what part was upon the subscription list, nor how much was for contribution. If this does not present a case of joinder "calculated to disturb the orderly course of procedure, to occasion delay, and accumulate costs, which it might be difficult (yea, impossible) to properly adjust," I think it would be hard to imagine one that would. Frey v. Railway Co., 86 Tex. 465, 25 S. W. 609; Frost v. Frost, 45 Tex. 324; Callahan v. Houston, 78 Tex. 494, 14 S. W. 1027; Howard v. Parks, 1 Tex. Civ. App. 603, 21 S. W. 269. I do not think the principle which authorizes all the creditors of an insolvent corporation to join in a suit against all the subscribers to its stock, in order to have the amount necessary to be raised properly apportioned among them (Mathis v. Pridham, 1 Tex. Civ. App. 58, 20 S. W. 1015), can be applied to the facts of this case. That principle fully and correctly sustains the practice here adopted, in so far as contribution among the obligors upon the bond to the railroad is sought; but I cannot think it should be so extended as to allow the joining with such a suit additional claims against some only of the obligors upon other and distinct grounds. Waterworks v. Somerville, 14 Gray, 193. I am also inclined to the opinion that these causes of action should not have been joined because all the payees in the subscription list—that is, all those who accepted the terms therein proposed by executing the bond to the railroad —should have been made plaintiffs in an action to recover thereon. In this case the recovery is by only 26 of the 53 payees. In Dicey, Parties (2d Am. Ed.) side page 104, it is said: "Rule 13. All the persons with whom a contract is made must join in an action for the breach of it. `A contract by one person with two jointly does not comprehend or involve a contract with either of them separately,' as `is evident from the...