Wibaux v. Grinnell Live-Stock Co.

• Decision Date: 05 October 1889
• Parties: WIBAUX v. GRINNELL LIVE-STOCK CO. et al.
• Court: Montana Supreme Court

9 Mont. 154

WIBAUX

v.GRINNELL LIVE-STOCK CO. et al.

Supreme Court of the Territory of Montana.

Oct. 5, 1889.

Appeal from district court, Custer county.

This was an action brought by the plaintiff (appellant in this court) against the Grinnell Live-Stock Company for the alleged breach of a contract for the delivery of cattle, and with said company are joined as defendants T. L. Kimball and George W. Holderge, who are sued as guarantors or sureties of the cattle company for the fulfillment of the contract on its part. The allegations of the complaint material to be stated are in substance these: The plaintiff and said cattle company, on the 25th of August, 1888, entered into a written contract, whereby the plaintiff bought, and the cattle company sold, certain stock cattle, estimated at from 3,000 to 4,500 head, (the number being indefinite, but not less than the former nor more than the latter number,) and to include the cattle that could with ordinary work and diligence be collected from the range of the cattle company on Hanging Woman creek, within the limit as to number above mentioned. The cattle were to consist of 150 bulls, and the remainder of young cattle of both sexes; the calves not to be counted in the delivery, nor paid for by the purchaser, and not more than 450 yearling cattle were to be delivered. The plaintiff agreed to pay for said cattle $20 per head, and the delivery was to be between the 1st of October and the 1st of November, 1888. The contract further stipulates that the sum of $15,000 shall be forfeited by the plaintiff if he fails to comply with the terms of the contract. This amount the plaintiff paid the cattle company on the execution of the contract; while the cattle company, as surety for the fulfillment of the contract by it, agreed to and did give a bond in the sum of $15,000, with the defendants Kimball and Holderge as sureties. This $15,000 paid by the plaintiff, and secured by the cattle company, is referred to in the contract in one place as a penalty, and in another as liquidated damages. Plaintiff alleges that he performed all the conditions of said contract to be performed on his part, and was ready, able, and willing to receive and pay for all the cattle called for by said contract within the time specified for delivery. But said cattle company neglected and failed to deliver said cattle, except 123 bulls, 889 cows, and 317 yearlings; in all, 1,329 head, not reckoning calves. The complaint further alleges that the defendant cattle company had on its ranges not less than 4,000 head of cattle of the quality described in the contract, which, by the use of ordinary work and diligence, it could have delivered under the contract; and this is assigned as the breach of the contract on the part of the cattle company. The failure to pay the $15,000 is assigned as the breach of the contract on the part of the cattle company and the sureties on the guaranty. The action is against the cattle company and the sureties on the separate guaranty, and alleges damages in the sum of $15,000, and prays for judgment for that amount. The defendant demurred to the complaint on several grounds: First, because of misjoinder of parties defendant; second, because several causes of action are improperly united; third, because the complaint does not state facts sufficient to constitute a cause of action. The court sustained the demurrer on the last ground of demurrer, and, upon the plaintiff refusing to amend, rendered judgment against him for costs. To review this action of the court in sustaining the demurrer, this appeal is prosecuted.

Strevell & Porter and Mr. Garlock, for appellant.

E. R. French, C. R. Middleton, and Word & Smith, for respondents.

DE WOLFE, J., (after stating the facts as above.)

An examination of the complaint shows, we think clearly, that it states a cause of action against one or all of the defendants. The contract between plaintiff and defendant company, and also the guaranty entered into by the defendants Kimball and Holderge on behalf of the cattle company, are set forth in hæe verba, and with sufficient averments to constitute a cause of action. In this respect the complaint is rather redundant than insufficient in allegation. Nor can it be said that several causes of action have been improperly united. The action is one for damages for an alleged breach of contract, and for which it seeks to make all the defendants liable. If a demurrer lies at all to the complaint, it must be on the first ground stated, on account of a misjoinder of parties defendant. As will be observed from the statement, the cattle company are sued for the alleged breach of contract in failing to deliver the cattle called for by its terms, and for the failure to pay the $15,000 penalty or liquidated damages which it agreed to pay in case of failure. The defendants Kimball and Holderge are sued on their contract of guaranty or suretyship. The cattle company did not join the last-named defendants in the instrument of guaranty executed by them. Nor are Kimball and Holderge liable on the contract between the plaintiff and the cattle company, except as their liability arises from the guaranty. The instruments are distinct, while both relate to the same subject. It follows that the liability of the defendants is separate and distinct in some respects, and that of each must be sought for and determined from the contract separately made by them. In no event can the defendants Kimball and Holderge be held for any sum above $15,000, whatever may be the liability of the cattle company under its contract. Whether they are liable for that amount will depend upon the damages sustained by the plaintiff for the failure to deliver the cattle called for by the contract, and whether the $15,000 is to be treated as a penalty, or as liquidated damages.

At the common law, parties jointly liable could not be sued separately, while parties severally liable could not be sued jointly. If the cause of action created a joint and several liability, the plaintiff could, at his election, sue all of the defendants jointly, or each separately, but was compelled to proceed in one or the other of these modes. 1 Chit. Pl. 30 et seq. The Code of Civil Procedure and the rule of pleading thereunder have changed all this; the policy of the reformed system being to lop off all effete forms, or those which serve no useful purpose, and enable a party in one action, and by a single proceeding, to subject all parties, whether jointly or severally liable, and whether upon the same or separate instruments. Section 1296 of the fifth division of the Compiled Statutes enacts as follows: “All joint obligations and covenants shall hereafter be taken and held to be joint and several obligations and covenants.” And section 20 of the Code of Civil Procedure is as follows: “Persons severally liable upon the same obligation or instrument, including the parties to bills of exchange and promissory notes, and sureties on the same or separate instruments, may, all or any of them, be included in the same action, at the option of the plaintiff.” Construing these provisions of our law in connection, we cannot doubt but what it was the intention of the legislature to do away with the technical rules which formerly surrounded parties as to whether their obligation was joint or several, and subject all or any number of them to a single action, at the option of the plaintiff, without regard to the exact nature of their liability, when measured by the former rules of pleading. The statute of New York is similar to our own on this subject, except that it leaves off the last clause, relating to sureties on the same or separate instruments. The construction of this statute came before the court of appeals of that state in the case of Carman v. Plass, 23 N. Y. 286. The action was against one of the defendants as principal, and the other as guarantor, for the payment of the amount stipulated to be paid by a certain lease made between the plaintiff in the action and the defendant Plass. There was a demurrer on the ground that no cause of action against the defendants jointly was set forth in the complaint. The defendants had judgment in the trial court, which was reversed in the supreme court, and the judgment of the latter court was affirmed in the court of appeals. The court in its opinion says: “No doubt, a pretty radical innovation upon the common-law system of pleading was made when by the act of 1832 the several obligations of parties to a bill or note were allowed to be enforced in a...