Phillips v. Poole

23 S.E. 504, 96 Ga. 515

• Court: Supreme Court of Georgia
• Decided: August 5, 1895
• Status: Published

Opinion

Atkinson, Justice.

The official report states the facts. T.o the proposition stated in thé head-note, it is only necessary to cite the elementary principles embodied in the following authority: “All the persons with whom a contract is made must join in an action for the breach of it. A contract by one person with two jointly does not comprehend or involve a contract with either of them separately, as is evident from the well known doctrine, that a covenant or promise to two, if proved in an action brought by one of them, sustains a plea which denies the existence of the contract.” Dicey on Parties to Actions, top page 119, rule 18; and again in same work, in a note in first column of top page 120, it is stated: “"When the contract is made with several jointly, all should sue for the breach, unless some good reason is shown in the case why they do not; death or refusal to join may be such reasons; citing Hays v. Lasater, 3 Ark. 565; Moody v. Sewell, 4 Me. 295; Sims v. Tyre, 3 Brev. 249. Inasmuch, then, as all the parties to this contract were not before the court, and their absence neither explained, accounted for nor excused by the petition, the court did not err in sustaining the demurrer and dismissing the same. Judgment affirmed.