Stevens v. Hall

19 N.H. 560

• Court: Superior Court of New Hampshire
• Decided: December 15, 1849
• Status: Published

Opinion

Gilchrist, C. J.

The ruling of the court as to the joint liability of the defendants is incorrect. From the peculiar language of the contract, the defendants were liable severally and not jointly. By the contract, they agreed to indemnify the plaintiff in proportion to the several sums which they then owed, that is, each one of them agreed to indemnify the plaintiff, in proportion to the sum which he owed. They did not jointly make a promise of indemnity in proportion to the sum which any one of them might owe, but each one spoke for himself. The case is not unlike the ordinary promise to pay in a subscription paper, where it is very common to use these words: “ We promise to pay the sums set against our names,” and the sum is affixed against the name of each subscriber. In such a case no one would contend that there was a joint promise by all to pay the subscription of each.

The true construction of the contract is, that inasmuch as all the subscribers were indebted to the town of Manchester in different degrees, each one was willing to indemnify the plaintiff in proportion, to his indebtedness. This, moreover, is such a contract as the parties would be likely to make, for it is altogether improbable that each one, in consideration of his individual liability to the town, would voluntarily agree to become responsible for the neglect of another person to pay what he owed the town.

Verdict set aside.