Franklin v. Ferguson

229 P. 683, 112 Or. 641, 1924 Ore. LEXIS 87

Opinions

McBRIDE, C. J.

The whole contention here is as to the construction of the following clause in the last paragraph of the contract:

“This contract not valid unless signed by twenty people, and should deficit occur each signer will be held responsible for their equal share.”

Without these words the contract would have been a joint contract, but we are clearly of the opinion that this clause makes it a several contract, upon which each signer must be sued separately for his proportionate share of the $1,250 alleged to be due: Hayden v. Pearce, 33 Or. 89, 91 (52 Pac. 1049); Gaines v. Vandecar, 59 Or. 187 (115 Pac. 721, 115 Pac. 1122); Gibbons v. Grinsel, 79 Wis. 365 (48 N. W. 255).

The addition of these words must be held to import an intention on the part of the signers to create a several liability or they are meaningless. This being the case, the court pursued the proper remedy in requiring the plaintiff to elect which of the several defendants he would proceed against in the action, and upon Ms failure so to do the proper course was pursued in striking out the complaint.

Messrs. Sclmebel é Beattie, for the petition. No appearance contra.

The judgment will be affirmed.

Affirmed. Rehearing Denied.

Burnett, Bean and Coshow, JJ., concur.

Rehearing denied December 2, 1924.