Ryan v. Riddle

• Decision Date: 31 October 1883
• Citation: 78 Mo. 521
• Parties: RYAN et al., Plaintiffs in Error, v. RIDDLE.
• Court: Missouri Supreme Court

78 Mo. 521

RYAN et al., Plaintiffs in Error,

v.RIDDLE.

Supreme Court of Missouri.

October Term, 1883.

Error to Bates Circuit Court.--HON. F. P. WRIGHT, Judge.

AFFIRMED.

T. J. Galloway for plaintiffs in error.

P. H. Holcomb for defendants in error.

MARTIN, C.

The plaintiffs sue as joint obligees in a bond. The bond was executed by James Riddle, defendant, as sole obligor, in favor of the plaintiffs and the defendant Smith, as joint obligees. It seems that defendant, James Riddle, sold to Josiah J. Ryan, Luther Shobe and Frank Smith, a stock of tools used by him in the tin business, and that in consideration of the sale he gave them his written obligation conditioned that he would not manufacture tinware or sell stoves in the town of Butler for the space of one year. The plaintiffs, being two of the obligees, bring this suit, alleging a breach of the bond by Riddle, the obligor; they further allege in substance that Frank Smith, their co-obligee, at the execution of the bond and since that time, has been secretly engaged with Riddle and with others in manufacturing tinware; and that he refused to join with plaintiffs in the prosecution of their suit, for which refusal he was made defendant under the provisions of the practice act. The defendant Riddle demurred to the petition, and judgment was rendered in favor of defendants, from which a writ of error is prosecuted in this court.

The instrument sued on is clearly a joint obligation for the payment of money. At common law no action could be maintained on it except in the names of all the obligees or their representatives. It is argued by the plaintiffs in error that this rule of the common law has been modified by section 3466 of the practice act, which reads as follows: “Parties who are united in interest must be joined as plaintiffs or defendants; but if the consent of any one who should be joined as plaintiff cannot be obtained, he may be made a defendant, the reason thereof being stated in the petition.” R. S. 1879, § 3466. This provision has remained in the same language since the adoption of our code of practice. It embodies a rule familiar to equity pleaders, but was unknown at common law. The construction given to it in modern practice has not been uniform. In some states it has been applied to law cases. Hill v. Marsh, 46 Ind. 218; while in others it has been confined to equity cases. Andrews v. Mokelumne Hill Co., 7 Cal. 330. If it was still open for construction in this State, we might hesitate between conflicting constructions. Habicht v. Pember ton, 4 Sandf. 657. But at an early day our Supreme Court held that this clause in our practice act did not authorize any number less than the whole of the obligees in a bond for the payment of money to maintain suit upon it. Clark v. Cable 21 Mo. 223; Rainey v. Smizer, 28 Mo. 310.

In an action of ejectment brought in the name of the trustees of a corporation, one of the trustees appeared in court and as plaintiff asked leave to dismiss the case so far as it concerned him, which was refused by the court upon the other plaintiffs giving bond to indemnify him against costs. The learned judge giving the opinion in the appellate court held that there was no error in this action of the court for the reason that upon his refusal to join as plaintiff he might have been placed on the other side as defendant. McAllen v. Woodcock, 60 Mo. 174. The previous cases were not overruled or alluded to in the opinion. The rights and obligations of the plaintiffs as officers and trustees of a corporation present a marked distinction between them and the obligees of a note or bond, which would naturally forbid the result of overruling the previous cases on such instruments, in the absence of any allusion to them. These early cases have been accepted and followed by the profession for nearly thirty years, and there is nothing peculiar to the case at bar, which can justify a distinction in its favor.

Certain incidents flow from the nature of a joint obligation or rather an obligation enuring to joint obligees. They are joint proprietors, and one must have as much right as the other to say and determine when suit shall be brought and when it shall be compromised or settled without suit. Neither can sue alone for his proportion. 1 Parsons Con., p. 13. It has been settled in this State that one of two joint obligees of a contract has the power to discharge and release the joint obligation. This was...