Christiancy J.
The Court erred in allowing the plaintiff, who was sworn as a witness, to testify “ that he executed and delivered to the defendants a deed of the company’s lands in Iowa and Indiana, which they accepted.” The object of the proof was to show performance by the plaintiff of the condition upon which the promise of the defendants was based. The deed was directly in issue and should have been produced and proved in the ordinary way. It was for the Court, and not the witness, to judge whether the instrument he called a deed was such in law, whether, in legal effect, it was a conveyance of the land; if not, the mere fact that the defendants accepted the paper, Tvould not constitute performance by the plaintiff.
The second error assigned is the refusal of the Court to allow the cross-examination of the witness for the purpose of showing that ho was mistaken in his statement on the direct examination, that he delivered to the defendants all the promissory notes belonging to the firm of Thompson and Richards, and for the purpose of showing, as the defendants proposed, that he had in fact used sixty-nine of them, and that at the time of the agreement he had in his possession a large amount of the notes of the firm, and other property, covered by the agrément, which he fraudulently secreted and refused'to deliver.
It would seem from the bill of exceptions, in connection with the argument of the counsel for defendant in error, that the Court, in excluding this cross-examination, must have acted upon the idea that the non-delivery of a part of the [184]*184property and notes by the plaintiff, could only be shown in reduction of damages, by way of recoupment, and not in bar of the action; and there being no notice of recoupment under the general issue, the evidence was inadmissible. Had this, however, been a proper case for recoupment, in which the defendant could only set up the non-delivery of a part of the property in reduction of damages, still the rejection of the proposed cross-examination would have been clearly erroneous under the most restricted rule ever adopted, where cross-examination is allowed at all. The witness had testified in chief to' the delivery of all the personal property and notes of the firm. The cross-examination related directly to the same subject matter, and to the identical facts stated by him in his direct examination. The defendants would have had a clear right, upon any theory of the action or defense, on cross-examination, not only to show that a part of the property had not been delivered, but that there had been an entire failure to deliver any part of it. Even upon the theory of the defense which the Court seems to have adopted, they had a right to draw out on cross-examination any thing which would tend to contradict, weaken or modify the evidence he had given on his direct examination, or any inference which might have resulted from it, tending in any degree to support the plaintiff’s case. If for no other purpose, they were certainly entitled to it for the purpose of testing the credibility of the witness, or to show him unworthy of any credit. But this is not the only ground; it might have explained away the effect of his direct testimony, without any imputation of a want of veracity. It might have completely nullified or greatly modified the effect of his testimony in chief; and, until such cross-examination should have been had or waived, the evidence given on the direct examination should not have been allowed to go to the jury.
But this was not a case for recoupment. The plaintiff sued and declared upon the special contract, and not upon an implied contract, to pay for the property which was delivered [185]*185to and appropriated by tbe defendants. Having sued and counted only upon the express contract, be was bound to sbow performance on bis part of tbe condition upon wbicb tbe promise of tbe defendants was based, or be could not be allowed to recover at all. See Allen v. McKibbin, 5 Mich. 449.
The defendants, therefore, bad a right, not only to sbow tbe non-performance of tbe condition, by cross-examination, but to introduce evidence for tbe same purpose in their defense, tending to sbow such non-performance. All such evidence would go to tbe whole cause of action. Evidence of this kind was offered on tbe defense, but excluded by tbe Court. This was clearly erroneous. Tbe second, fourth and fifth errors are therefore well assigned.
Tbe Court also erred in admitting tbe judgment in favor of Grimes against tbe plaintiff and William E. Thompson, to wbicb Charles B. Thompson was not a party, and in bolding that judgment to be the measure of damages. Had the contract been one, of indemnity merely, as contended by tbe counsel for plaintiffs in error, and tbe judgment bad been against tbe plaintiff and both defendants, it might have constituted tbe measure of damages; but tbe contract was to pay the debts of tbe firm, and not merely to indemnify against them. — Hall v. Nash, 10 Mich. 303; Butler v. Ladue, 12 Id. 173. Neither previous payment by, nor a judgment against tbe plaintiff was necessary to perfect bis right of action. The contract was to pay all tbe indebtedness of the firm, not to pay any judgment which might be rendered thereon. And whether tbe judgment might have been evidence and constituted a measure of damages, as against William E. Thompson, bad be been the only contracting party and sole defendant, is a question wbicb does not here arise. This is a joint action against two defendants, and tbe plaintiff must establish a joint liability, or fail in bis suit against both; tbe several liability of one will not sustain tbe action. Charles B. Thompson was a stranger to tbe judgment [186]*186and is not to' be affebted by it. The third and sixth errors are therefore well assigned.
Several questions were raised as to the proper interpretation of the contract, what would constitute a “ signing off” by the plaintiff of the rights, title, property, profits and lands of the company, within the meaning of the contract, and the duty of the Court to charge the jury in this respect. It was the duty of the Court to construe the contract^ and to charge the jury upon any question which might arise upon it. We think the agreement, when fairly interpreted, with reference to the circumstances existing at the time, the nature of the property and the object the parties had in view, would, as to all tangible personal property and negotiable paper, payable to bearer, and which would pass by mere delivery, be satisfied by a delivery to the defendants, so as to place the same in their full possession and control, and an acceptance of the same, unless written evidence of the transfer was specially requested. But if the defendants should refuse to accept such delivery without written evidence of the transfer of title, they would have the right to insist ujjon it, and might refuse to accept a delivery without it; for, though the title would pass without the writing, yet owing to the previous relations between Charles B. Thompson and the plaintiff, disputes might arise between the plaintiff and the defendants as to the ownership, and written evidence would be more valuable to the defendants and more easily preserved; and such evidence would in such case come fairly within the terms and intent of the contract.
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Christiancy J.
The Court erred in allowing the plaintiff, who was sworn as a witness, to testify “ that he executed and delivered to the defendants a deed of the company’s lands in Iowa and Indiana, which they accepted.” The object of the proof was to show performance by the plaintiff of the condition upon which the promise of the defendants was based. The deed was directly in issue and should have been produced and proved in the ordinary way. It was for the Court, and not the witness, to judge whether the instrument he called a deed was such in law, whether, in legal effect, it was a conveyance of the land; if not, the mere fact that the defendants accepted the paper, Tvould not constitute performance by the plaintiff.
The second error assigned is the refusal of the Court to allow the cross-examination of the witness for the purpose of showing that ho was mistaken in his statement on the direct examination, that he delivered to the defendants all the promissory notes belonging to the firm of Thompson and Richards, and for the purpose of showing, as the defendants proposed, that he had in fact used sixty-nine of them, and that at the time of the agreement he had in his possession a large amount of the notes of the firm, and other property, covered by the agrément, which he fraudulently secreted and refused'to deliver.
It would seem from the bill of exceptions, in connection with the argument of the counsel for defendant in error, that the Court, in excluding this cross-examination, must have acted upon the idea that the non-delivery of a part of the [184]*184property and notes by the plaintiff, could only be shown in reduction of damages, by way of recoupment, and not in bar of the action; and there being no notice of recoupment under the general issue, the evidence was inadmissible. Had this, however, been a proper case for recoupment, in which the defendant could only set up the non-delivery of a part of the property in reduction of damages, still the rejection of the proposed cross-examination would have been clearly erroneous under the most restricted rule ever adopted, where cross-examination is allowed at all. The witness had testified in chief to' the delivery of all the personal property and notes of the firm. The cross-examination related directly to the same subject matter, and to the identical facts stated by him in his direct examination. The defendants would have had a clear right, upon any theory of the action or defense, on cross-examination, not only to show that a part of the property had not been delivered, but that there had been an entire failure to deliver any part of it. Even upon the theory of the defense which the Court seems to have adopted, they had a right to draw out on cross-examination any thing which would tend to contradict, weaken or modify the evidence he had given on his direct examination, or any inference which might have resulted from it, tending in any degree to support the plaintiff’s case. If for no other purpose, they were certainly entitled to it for the purpose of testing the credibility of the witness, or to show him unworthy of any credit. But this is not the only ground; it might have explained away the effect of his direct testimony, without any imputation of a want of veracity. It might have completely nullified or greatly modified the effect of his testimony in chief; and, until such cross-examination should have been had or waived, the evidence given on the direct examination should not have been allowed to go to the jury.
But this was not a case for recoupment. The plaintiff sued and declared upon the special contract, and not upon an implied contract, to pay for the property which was delivered [185]*185to and appropriated by tbe defendants. Having sued and counted only upon the express contract, be was bound to sbow performance on bis part of tbe condition upon wbicb tbe promise of tbe defendants was based, or be could not be allowed to recover at all. See Allen v. McKibbin, 5 Mich. 449.
The defendants, therefore, bad a right, not only to sbow tbe non-performance of tbe condition, by cross-examination, but to introduce evidence for tbe same purpose in their defense, tending to sbow such non-performance. All such evidence would go to tbe whole cause of action. Evidence of this kind was offered on tbe defense, but excluded by tbe Court. This was clearly erroneous. Tbe second, fourth and fifth errors are therefore well assigned.
Tbe Court also erred in admitting tbe judgment in favor of Grimes against tbe plaintiff and William E. Thompson, to wbicb Charles B. Thompson was not a party, and in bolding that judgment to be the measure of damages. Had the contract been one, of indemnity merely, as contended by tbe counsel for plaintiffs in error, and tbe judgment bad been against tbe plaintiff and both defendants, it might have constituted tbe measure of damages; but tbe contract was to pay the debts of tbe firm, and not merely to indemnify against them. — Hall v. Nash, 10 Mich. 303; Butler v. Ladue, 12 Id. 173. Neither previous payment by, nor a judgment against tbe plaintiff was necessary to perfect bis right of action. The contract was to pay all tbe indebtedness of the firm, not to pay any judgment which might be rendered thereon. And whether tbe judgment might have been evidence and constituted a measure of damages, as against William E. Thompson, bad be been the only contracting party and sole defendant, is a question wbicb does not here arise. This is a joint action against two defendants, and tbe plaintiff must establish a joint liability, or fail in bis suit against both; tbe several liability of one will not sustain tbe action. Charles B. Thompson was a stranger to tbe judgment [186]*186and is not to' be affebted by it. The third and sixth errors are therefore well assigned.
Several questions were raised as to the proper interpretation of the contract, what would constitute a “ signing off” by the plaintiff of the rights, title, property, profits and lands of the company, within the meaning of the contract, and the duty of the Court to charge the jury in this respect. It was the duty of the Court to construe the contract^ and to charge the jury upon any question which might arise upon it. We think the agreement, when fairly interpreted, with reference to the circumstances existing at the time, the nature of the property and the object the parties had in view, would, as to all tangible personal property and negotiable paper, payable to bearer, and which would pass by mere delivery, be satisfied by a delivery to the defendants, so as to place the same in their full possession and control, and an acceptance of the same, unless written evidence of the transfer was specially requested. But if the defendants should refuse to accept such delivery without written evidence of the transfer of title, they would have the right to insist ujjon it, and might refuse to accept a delivery without it; for, though the title would pass without the writing, yet owing to the previous relations between Charles B. Thompson and the plaintiff, disputes might arise between the plaintiff and the defendants as to the ownership, and written evidence would be more valuable to the defendants and more easily preserved; and such evidence would in such case come fairly within the terms and intent of the contract.
As to any contracts, accounts or choses in action, the property in which would not pass by mere delivery, the plaintiff, to fulfill the condition of the contract, should have assigned or conveyed his Interest in them by writing, and delivered them, so far as susceptible of delivery, to the defendants, so as to put them under their dominion and control; and the interest of the plaintiff in the lands of the [187]*187firm should, of course, be conveyed by deed of conveyance, properly executed, acknowledged and delivered.
The condition of the agreement could be performed by the plaintiff only by a transfer in the proper manner, as above indicated, of all the property and rights of the plaintiff in the firm. A transfer of a part only, by delivery or otherwise, would not satisfy the condition, unless the defendants, knowing that all had not been thus transferred, chose to waive the transfer or delivery ofrthe residue. And such waiver, to be effectual, should, we think, be the act of both the defendants. A waiver by one would not bind the other, nor, in this suit, be effectual as to either. There is no evidence tending to show that defendants were partners, either at the time of sale or afterwards. One cannot, therefore, be considered the agent of .the other for the purpose of such waiver, without proof of such agency; and we can discover no sound or safe principle upon which a waiver by one of these defendants, or the admission of one, as proved in this case, should bind the other. The waiver, if effectual, constituted in legal effect an alteration of the contract, and was equivalent to the making of a new contract, by which the defendants would be bound to pay all the debts of the firm upon the plaintiff’s transferring to them his interest in a part of the property of the firm, when by the original contract they had only agreed to pay those debts upon his transferring his interest in the whole. And, upon principle, we think it would require the same authority from the one to bind the other by such new or altered contract, as would have been required to authorize him, as agent of the other, to bind him by the original contract, had that been made through such agency. If one can bind the other by a waiver of part of the condition, we see no good reason why he may not bind him by a waiver of the whole. Payment to, or a release by one joint creditor stands upon quite different grounds.
The admissions of Charles B. Thompson were evidence as against him, and it was competent for the plaintiff to intro[188]*188duce them in this case, but to render them of any avail, he should also have shown admissions of a like tendency by the other defendant. If he failed to do so, the admission of Charles B. should have been withdrawn from the jury. Such admissions are often made under a misapprehension, and might have been made in this case in ignorance of facts known to the other defendant. Charles B. might have made the admission of full performance, knowing there had been but a partial performance, but with the intention of waiving the performance of the residue. Such considerations might not, it is true, exclude the' admission of one as against the other of two joint creditors or payees, when the admission related to payment or satisfaction; because it is a part of the legal effect of the joint contract, that payment.may be made to either, and will operate as payment to both, and no new contract or liability is thereby created; and if one of them choose to admit the payment of a debt due to him and the other jointly, when it has not been j>aid in fact, he may thereby render himself liable to account to the other for the proportion due the latter. But the defendants were not, by this contract alone, joint creditors, nor was the plaintiff thereby bound to them for the payment or performance of any thing. He does not sign the contract and was not bound by it. His performance was optional — merely a condition precedent to the undertaking of the defendants, and until performance or waiver of performance, they were neither liable jointly nor severally. The admissions of the one cannot, therefore, bind the other on the ground ofj a joint liability upon the contract, (if that were sufficient to admit them). The joint liability cannot be proved by the admission, when the admission is necessary to establish the joint liability. This would be reasoning in a circle.
Ii the condition had not in fact been fully performed, the admission by Charles B. Thompson that it had been thus performed could 'only operate as a waiver, and this, as already shown, would be equivalent to a new contract. With[189]*189out performance or waiver there was no liability. Either performance or waiver would create a liability. The case therefore is one in which the admissions of one, if allowed to bind the other, would tend to create a liability on the part of the latter, and to bind him by a contract to which he never assented.
Such a power in one joint contractor to bind another, we think unreasonable and dangerous. — See Bell v. Morrison, 1 Pet. 351; Van Keuren v. Parmelee, 2 Comst. 523; Lewis v. Woodworth & Pratt, Id. 512 ; the reasoning of which, upon this point, we entirely approve; see also Shoemaker v. Benedict, 1 Kern. (11 N. Y.) 176. There is no evidence in the record tending to show that William E. Thompson admitted performance of the condition by the plaintiff’ or ever consented to the acceptance of a part for the whole, or that he ever waived any part of the condition. Nor was there any evidence tending to show that Charles B. Thompson was his agent, or had any authority to accept such partial performance, or to waive his rights in any respect.
The judgment must be reversed, with costs, and a new trial granted.
Campbell and Cooley JJ. concurred.
Martin Ch. J. concurred in the result.