Singer v. Singer

214 N.W. 778, 173 Minn. 57, 1927 Minn. LEXIS 1114

• Court: Supreme Court of Minnesota
• Decided: July 1, 1927
• Docket: No. 26,115.
• Status: Published

Opinions

¹ Reported in 214 N.W. 778, 216 N.W. 789. Appeal from a judgment entered against both defendants upon an order of the court.

It is alleged in the complaint that the defendant Stephen Singer sold and delivered to the defendant Virginia Creamery Company a quantity of eggs; that there remains unpaid on the purchase price thereof the sum of $98.72; that for a valuable consideration the vendor sold, assigned, transferred and delivered to the plaintiff such account and indebtedness and guaranteed the payment thereof to him; that there is now due and owing from the defendants to the plaintiff thereon the sum of $98.72 with accrued interest.

To such complaint the defendant creamery company interposed a demurrer upon the ground that there is a defect of parties defendant and that several causes of action are improperly united, in that a cause of action against the defendant Stephen Singer is improperly united with the cause of action against the defendant creamery company. The demurrer was overruled, judgment was entered, and the creamery company appealed.

The important question to be determined upon this appeal is whether the seller of goods may, as guarantor of the payment of the account to his assignee, be joined as defendant with the principal debtor. Section 9174, G.S. 1923, is as follows:

"Persons severally liable upon the same obligation or instrument, including parties to bills of exchange and promissory notes, and sureties on the same instrument, may all or any of them be included in the same action, at the option of the plaintiff."

This statute was considered and passed upon by this court in the case of Hammel v. Beardsley, 31 Minn. 314, 17 N.W. 858. The statutes of many other states pertaining to the same subject matter are much different from ours, and the decisions based thereon are of but little importance here. Clearly the policy of our statute is to prevent a multiplicity of suits by uniting in one action all who are liable in any way on the same claim. Hammel v. Beardsley, 31 Minn. 314, 17 N.W. 858. We know of no good reason why a principal debtor and a guarantor of the payment of such debt may not be united in one action. Wendlandt v. Sohre,37 Minn. 162, 33 N.W. 700.

We are unable to agree with the contention that § 9174 was intended to apply only to promissory notes and similar negotiable instruments. The provision under consideration is comprehensive. The words "obligation or instrument," as used therein, mean engagements, contracts, agreements, stipulations, bonds, covenants, as well as negotiable instruments. As said in Hammel v. Beardsley, 31 Minn. 314, 17 N.W. 858:

"If an indorser is liable on the same instrument with the maker, so is an absolute guarantor of payment, for his undertaking is in the nature of a surety. * * * But one who absolutely guaranties payment of the debt is in every respect essentially a surety."

This must be true whatever may be the particular form of the undertaking, else the provision of the statute under consideration will be without meaning or effect.

The vendor sold the account and debt to one of the defendants and guaranteed payment of the balance owing thereon to his grantee. As between him and the grantee, he became essentially a surety for the payment of the claim. We see no good reason why he might not be joined with the principal debtor in an action to recover such debt. The purpose of the statute is to enable the plaintiff to include one or all of the parties liable for the payment of the obligation, without regard to the form of the engagement.

A party who is properly made defendant in an action cannot object by demurrer that others are improperly joined with him. 5 Dunnell, Minn. Dig. (2 ed.) § 7327, and cases there cited. If a party is joined as a party defendant solely for the purpose of preventing a change of venue, the place of trial may be changed upon motion. Roesler v. Union Hay Co. 131 Minn. 489,154 N.W. 789.

Affirmed.