Woods, J.
The defendant cut the timber in question upon lands claimed by the plaintiffs, and after having cut a portion of it, he, wishing to cut more, agreed with the agent of the plaintiffs to pay them for what he had cut and what he should cut, so much per thousand, as Horner and Sawyer should say it was worth on the stump. After this arrangement, the defendant went on and cut a considerable quantity more, and drew away the whole, amounting to 128,000 feet in all. One ground of answer to the plaintiffs’ action, relied upon by the defendant at the trial was, that he revoked the authority conferred upon Horner and Sawyer, to determine the value of the timber, and that, therefore, although they expressed their opinion upon the ques[506]*506tion, still they did not intend it as binding upon the parties. The court ruled that the evidence offered to show this state of fact was inadmissible, on the ground that it did not show any defence to the action. The question is whether this ruling was correct.
The defendant agreed to take the whole timber cut by him, and to pay for it, and was permitted by the plaintiffs to take, and actually did take it into his possession, and convert it to his own use. He took it and hauled it away under a contract for the purchase of it. And the plaintiffs, if the sole owners of it, would clearly be entitled to recover the value of it, as for goods sold and delivered, unless the right be defeated upon the ground assumed by the defendant. But that ground of answer cannot avail him. The defendant has taken to his use and benefit the timber cut by him, and the plaintiffs have done and been ready to do every thing stipulated to be done by them, to entitle them to a fair compensation for it. If the price or value of the timber was not determined in the manner agreed upon by the parties, it was not the fault of the plaintiffs, but of the defendant. The defendant cannot set up the fact of the failure of the parties to obtain the judgment of Horner and Sawyer, as to the value of the timber, in defence of this action when that was occasioned by the defendant himself. He cannot avail himself of his own wrongful act, in violation of his own agreement, for this purpose. Here was a sale by the plaintiffs to the defendant, and a delivery of the timber, which will render him liable for the fair value of the interest which ,he acquired by the sale, notwithstanding the alleged revocation, on his part, of the authority given to Horner and Sawyer to determine the value of it. The revocation, then, if fully shown, would form no bar to a recovery by the plaintiffs, and the rejection of the evidence of the fact, offered by the defendant, could in no way prejudice his rights, or furnish sufficient ground to sustain a motion for a new trial. A further ground of answer to the ac-[507]*507lion, relied upon by the defendant was, that the plaintiffs were tenants in common,"with certain other persons, of the premises on which the timber was cut, and had no other interest in the timber than what would arise to them upon that state of fact, and that being tenants in common only of the land, and,-consequently, of the timber, they could not maintain this action in their names alone, without joining the other tenants in common in the action. The evidence offered by the defendant, to show this state of fact, was ruled out, as furnishing no answer to the plaintiffs’ action.
Upon the case, it is proper to assume that the plaintiffs were tenants in common, with others, of the lands upon which the timber was cut. That was the fact offered to be proved, and being ruled out, it must, for the decision, be considered as proved, and have the effect of the established fact. Was that a sufficient answer to the action ? That is the exact question for consideration.
The first count in the declaration is upon an account annexed. The second is, in terms, for goods sold and delivered.
Both counts, then, are, in legal effect, counts for goods sold and delivered. Messer v. Woodman, 2 Foster’s Rep. 176.
To entitle the plaintiffs to recover, it must appear that the contract was with them alone, and not with them and others, jointly; that they are the only persons with whom the contract was made, or in whom the legal interest in the contract vested at the time it was made. For all the parties in whom the joint legal interest in a contract resides, must join in the action. The nonjoinder of one of the promisees having such interest, would be a ground of non-suit. 1 Saund. on PI. & Ev. 143. The proper inquiry in such a case is, in whom is the legal interest in the contract? It has been decided that where an express contract has been made with one partner only, and the defendant did not, at the time of the contract, know that there were other part[508]*508ners, that one may sue alone. In such case, it has been decided that the action lay either by the party with whom the contract was actually made, or in the names of all the partners interested. Skinner v. Stocks, 4 Barn. & Ald. 437; Parsons v. Crosby, 5 Esp. 199.
In general, an action on a contract, express or implied, must be brought in the name of the party in whom the legal interest in the contract is vested. 1 Chitty’s PL 2.
And Chitty says “ where the contract is made with several persons, whether it be under seal or in writing, but not under seal, or by parol, if the legal interest be joint, they must all, if living, join in an action in form ex contractu for the breach of it.” 1 Chitty’s Pl. 8.
Where the legal interest and cause of action of the covenantees are several, each may and should sue separately for the particular damages resulting to him individually, although the contract be in terms joint. 1 Taunt. 7; 1 Chitty 10; Hammond on Parties to Actions 19.
In Hammond on Parties to Actions, page 6, it is said that “ to the validity of simple agreements other than in certain cases of negotiable securities, a consideration is essential, of which distinct proof must, to enforce them, usually be adduced; and where this rule applies, the legal interest in the simple contract resides with the party from whom its consideration moves. The rule deciding with whom resides the legal interest of implied contracts, is obviously similar to that which holds in express agreements.” Hammond on Parties 11.
There are a few cases stated in Hammond on Parties, page 20, to show who are considered in law as having the legal interest in contracts, whether the interest belongs to several jointly, or separately to each. It is said there “ if its consideration has moved from all jointly, all are jointly interested, notwithstanding each may derive a separate benefit from its performance, though they may, perhaps, sue separately when neglected.”
[509]*509Again, “ if the consideration has moved separately from each, still, if the beneficial interest is joint, the legal interest is joint in all.” And again, “ if the consideration and beneficial interest are both several, the contract is several to each.” The illustration of the first position or rule is given thus: “where some cattle of B. and some of C.. being dis-trained, they jointly paid A. £10, to procure to each a return of his cattle, and on A’s neglect, B. and C. were allowed to join in suing him, on the ground that the consideration was joint, it not being known how much of the £10 the one gave or how much the other.”
The second rule stated is illustrated by supposing A. and B. to give C. £5 apiece to go to L.
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Woods, J.
The defendant cut the timber in question upon lands claimed by the plaintiffs, and after having cut a portion of it, he, wishing to cut more, agreed with the agent of the plaintiffs to pay them for what he had cut and what he should cut, so much per thousand, as Horner and Sawyer should say it was worth on the stump. After this arrangement, the defendant went on and cut a considerable quantity more, and drew away the whole, amounting to 128,000 feet in all. One ground of answer to the plaintiffs’ action, relied upon by the defendant at the trial was, that he revoked the authority conferred upon Horner and Sawyer, to determine the value of the timber, and that, therefore, although they expressed their opinion upon the ques[506]*506tion, still they did not intend it as binding upon the parties. The court ruled that the evidence offered to show this state of fact was inadmissible, on the ground that it did not show any defence to the action. The question is whether this ruling was correct.
The defendant agreed to take the whole timber cut by him, and to pay for it, and was permitted by the plaintiffs to take, and actually did take it into his possession, and convert it to his own use. He took it and hauled it away under a contract for the purchase of it. And the plaintiffs, if the sole owners of it, would clearly be entitled to recover the value of it, as for goods sold and delivered, unless the right be defeated upon the ground assumed by the defendant. But that ground of answer cannot avail him. The defendant has taken to his use and benefit the timber cut by him, and the plaintiffs have done and been ready to do every thing stipulated to be done by them, to entitle them to a fair compensation for it. If the price or value of the timber was not determined in the manner agreed upon by the parties, it was not the fault of the plaintiffs, but of the defendant. The defendant cannot set up the fact of the failure of the parties to obtain the judgment of Horner and Sawyer, as to the value of the timber, in defence of this action when that was occasioned by the defendant himself. He cannot avail himself of his own wrongful act, in violation of his own agreement, for this purpose. Here was a sale by the plaintiffs to the defendant, and a delivery of the timber, which will render him liable for the fair value of the interest which ,he acquired by the sale, notwithstanding the alleged revocation, on his part, of the authority given to Horner and Sawyer to determine the value of it. The revocation, then, if fully shown, would form no bar to a recovery by the plaintiffs, and the rejection of the evidence of the fact, offered by the defendant, could in no way prejudice his rights, or furnish sufficient ground to sustain a motion for a new trial. A further ground of answer to the ac-[507]*507lion, relied upon by the defendant was, that the plaintiffs were tenants in common,"with certain other persons, of the premises on which the timber was cut, and had no other interest in the timber than what would arise to them upon that state of fact, and that being tenants in common only of the land, and,-consequently, of the timber, they could not maintain this action in their names alone, without joining the other tenants in common in the action. The evidence offered by the defendant, to show this state of fact, was ruled out, as furnishing no answer to the plaintiffs’ action.
Upon the case, it is proper to assume that the plaintiffs were tenants in common, with others, of the lands upon which the timber was cut. That was the fact offered to be proved, and being ruled out, it must, for the decision, be considered as proved, and have the effect of the established fact. Was that a sufficient answer to the action ? That is the exact question for consideration.
The first count in the declaration is upon an account annexed. The second is, in terms, for goods sold and delivered.
Both counts, then, are, in legal effect, counts for goods sold and delivered. Messer v. Woodman, 2 Foster’s Rep. 176.
To entitle the plaintiffs to recover, it must appear that the contract was with them alone, and not with them and others, jointly; that they are the only persons with whom the contract was made, or in whom the legal interest in the contract vested at the time it was made. For all the parties in whom the joint legal interest in a contract resides, must join in the action. The nonjoinder of one of the promisees having such interest, would be a ground of non-suit. 1 Saund. on PI. & Ev. 143. The proper inquiry in such a case is, in whom is the legal interest in the contract? It has been decided that where an express contract has been made with one partner only, and the defendant did not, at the time of the contract, know that there were other part[508]*508ners, that one may sue alone. In such case, it has been decided that the action lay either by the party with whom the contract was actually made, or in the names of all the partners interested. Skinner v. Stocks, 4 Barn. & Ald. 437; Parsons v. Crosby, 5 Esp. 199.
In general, an action on a contract, express or implied, must be brought in the name of the party in whom the legal interest in the contract is vested. 1 Chitty’s PL 2.
And Chitty says “ where the contract is made with several persons, whether it be under seal or in writing, but not under seal, or by parol, if the legal interest be joint, they must all, if living, join in an action in form ex contractu for the breach of it.” 1 Chitty’s Pl. 8.
Where the legal interest and cause of action of the covenantees are several, each may and should sue separately for the particular damages resulting to him individually, although the contract be in terms joint. 1 Taunt. 7; 1 Chitty 10; Hammond on Parties to Actions 19.
In Hammond on Parties to Actions, page 6, it is said that “ to the validity of simple agreements other than in certain cases of negotiable securities, a consideration is essential, of which distinct proof must, to enforce them, usually be adduced; and where this rule applies, the legal interest in the simple contract resides with the party from whom its consideration moves. The rule deciding with whom resides the legal interest of implied contracts, is obviously similar to that which holds in express agreements.” Hammond on Parties 11.
There are a few cases stated in Hammond on Parties, page 20, to show who are considered in law as having the legal interest in contracts, whether the interest belongs to several jointly, or separately to each. It is said there “ if its consideration has moved from all jointly, all are jointly interested, notwithstanding each may derive a separate benefit from its performance, though they may, perhaps, sue separately when neglected.”
[509]*509Again, “ if the consideration has moved separately from each, still, if the beneficial interest is joint, the legal interest is joint in all.” And again, “ if the consideration and beneficial interest are both several, the contract is several to each.” The illustration of the first position or rule is given thus: “where some cattle of B. and some of C.. being dis-trained, they jointly paid A. £10, to procure to each a return of his cattle, and on A’s neglect, B. and C. were allowed to join in suing him, on the ground that the consideration was joint, it not being known how much of the £10 the one gave or how much the other.”
The second rule stated is illustrated by supposing A. and B. to give C. £5 apiece to go to L. And the third, by the case where A. and B. give C. £5 each, to serve A. one month, and B. another.
The general principle of law to be deduced from the authorities undoubtedly is, that where there is a contract, and the legal interest therein is joint in several, they should all join in one action, in form ex contractu, for a breach of It; but when the legal interest is several in each, the action should, in general, be several.
The substantial ground assumed in the defence, in the present case is, that the other tenants in common of the land, and, consequently, of the timber in question, should have been joined as co-plaintiffs in the action. That position is to be sustained, if they appear upon the facts reported, to have a joint legal interest in the contract with the plaintiffs. But we are of the opinion that they are not shown to have such joint interest.
The present plaintiffs are tenants in common, with others, of the timber. That fact, alone, authorized them to sell and convey only their shares or interest in the common property. They are not shown to have had any special authority to sell and dispose of the interest of their co-tenants in the property. The party who acted in making the contract was the agent of the plaintiffs only, and did not assume to [510]*510be the agent of the other co-tenants. The interest of the plaintiffs, then, alone, is shown to have passed by the sale, and that alone furnished the consideration for the defendant’s promise. And the promise was an express promise, and was made to the plaintiffs alone.
The other co-tenants, then, were interested neither in the consideration nor in the promise, and upon no principle or adjudged case found in the books, can they be said to have any legal interest in the contract.
They should not, therefore, have been joined in the action with the plaintiffs.
The opinion of the court is, therefore, that there must be
Judgment on the verdict.