Childress v. M'Cullough

5 Port. 54

Opinion

GOLDTHWAITE, J.

This action, in its form, is covenant; and the declaration sets forth a contract ujrder seal, dated twenty-ninth January, eighteen hundred and thirty-three, entered into by the plaintiff, with the defendant, McCullough — by which it appears, thai.McCullough covenanted to perform several duties, and make several payments, which it is unnecessary to recapitulate, hut which were to be performed and paid at several times during the years 1833 ancl 1834. It also sets forth another contract under seal, between the same parties, dated the twentieth September, eighteen hundred and thirty-three, which does not seem to change the previous contract, except so far as to discharge McCullough from one of his stipulations. It also sets forth a contract, under seal, between the plaintiff, and the defendant, Richardson, dated September, eighteen hundred and thirty-three; by which Richardson covenanted with the plaintiff to become the security of McCullough for the performance of his part of the contract, before entered into by him with the plaintiff — so far as the same extended to the then present year.

Many omissions of the duties to have been performed by McCullough, under his contract, are assigned for breaches of the covenant, and it avers omissions of acts to be done by him in eighteen hundred and thirty-four as well as eighteen hundred and thirty-three.

To this declaration the defendants demurred, and judgment was thereon rendered in their favor. The correctness of this judgment, is now sought to be reversed.

The objection to which this declaration seems liable, is the misjoinder of the parties defendant.

It is a well recognized rule, that Courts of law, will not take cognizance of distinct and separate claims, or liabilities of several persons in one suit, though standing in the same relative situations.

Footnotes

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In the present case, M’Cullough and Richardson, were each liable to the plaintiff, on their several covenants, but by different instruments, and not to the same extent. M’Cullough was liable absolutely; Richardson was only liable, in the event of the failure of M’Cullough. M’Cullough was liable for two years — Richardson for one, only. And although the contract of each, was in relation to the same subject matter, it would by no means follow, that they are liable as joint contractors. There is no more reason, to assume a joint liability in this case, than in the case of the maker and endorser of a promissory note. Then the contract of each party is in reference to the same subject matter, yet the liabilities are perfectly distinct and several in their character.

That the defendants were not liable as joint contractors, and should not have been sued as such, is, we think, obvious; but one illustration may be drawn, from a well settled and acknowledged principle of law. All joint contractors are liable in the same manner, as each other, and a release of one, is the release of all.*

Test the case by this rule, and it would if the .defendants are joint contractors, that M’Cul-lough would be released, if a release was given to Riehardson, That this would not be the effect of a release to him, under .the case presented, is without doubt.

There was therefore, no error in the judgment of the Court below., and it must be affirmed.

COLLIER, J. not sitting.

1 Chitty's Plead. 33.

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Coke on Litt. 232 L. M. S. 376.