Incidents of procedure in the enforcement of contractual rights by joint obligees... 326 Incidents of procedure in the enforcement of contractual duties against joint obligors... 327 Incidents of procedure in the enforcement of joint and several duties.. 328 329 Judgment against or in favor of one or more joint obligors discharges the others.... 330 Foreign judgments against one joint obligor do not discharge the others.... 331 Effect of merger, satisfaction or security upon rights against one joint or joint and several obligor.. 332 Release of one joint obligor releases all.. 333 Discharge by other means than a technical release.. .333a Release or discharge of one joint and several debtor releases all... 334 Equitable relief from discharge of one joint debtor by release of another.... 335 Statutory changes. 336 Effect of judgments against joint and several obligors.. 337 A covenant not to sue or a qualified release of a joint or a joint and several obligor does not discharge the others. 338 Release of joint tort feasors... .338a Release of one not in fact liable. 338b Summary of effect of covenant not to sue joint obligor.. .338c Effect of covenants and qualified releases where one co-debtor is a surety... 339 Importance of the creditor's knowledge of a suretyship relation between joint debtors..... 340 Whether consideration received from one co-debtor must be credited in proceedings against another.... 341 Rights of a co-debtor who has received a covenant that he shall not be sued, or a qualified release.. 342 Discharge of a joint right by one obligee destroys the right of all.. 343 Survivorship of joint rights and duties 344 Contribution..... 345 Effect of a new promise or part payment by a joint or joint and several debtor on the Statute of Limitations.. § 316. Nature of joint duties. 346 The primary conception of a joint duty or obligation under a contract is that two or more persons are together bound as if they were a single person. This conception is possible in reasoning concerning the nature of a contract, and the enforcement by it of legal action and by judgment. The idea ceases to be practical when a judgment has been rendered against joint contractors and the plaintiff wishes to satisfy that judgment. If indeed the joint promisors owned property jointly, it would be possible to hold that an execution under a joint judgment should be levied solely upon the joint property of the debtors. Frequently, however, joint promisors own no property jointly; and even when they do, as in the case of partners, the execution may be levied wholly on the individual property of a single one of them. Though joint promisors, therefore, are liable as an indivisible unit in legal theory until the moment comes for the satisfaction of the plaintiff's claim out of their property, the property of each then becomes liable severally for the whole of the debt. It is also true that together with their liability as a unit, each was conceived in a somewhat metaphysical way to be bound individually though not subject to be sued alone.2 It has been said that a joint agreement by several to perform an act may be resolved into an agreement by all, or some, or one of them to do it; 3 but it is conceived that this analysis is not accurate. A joint agreement is an agreement by all, that the act promised shall be done. The act promised frequently by the terms of the promise may be performable 1 Abbot v. Smith, 2 W. Bl. 947, 949; Miller v. Mynn, 1 E. & E. 1075; Leinkauff v. Munter, 76 Ala. 194; Clayton v. May, 68 Ga. 27; Hardy v. Overman, 36 Ind. 549; Bray v. Seligman, 75 Mo. 31; Randolph v. Daly, 16 N. J. Eq. 313; Saunders v. Reilly, 105 N. Y. 12, 21, 12 N. E. 170, 59 Am. Rep. 472. If a joint defendant dies after judgment, the judgment continues to bind the survivors. Ex parte Christy, 2 D. & Ch. 155, 169. 2 See infra, § 327. 3 Griffith on Joint Rights and Liabilities, 2. by any one of the promisors, sometimes by only one of them. Sometimes it may require joint action of all the promisors and sometimes it may be performable only by a third person. Thus A and B may jointly promise that they together will do an act, that one of them severally shall do an act, or that a third person shall do an act.4 It must be observed, however, that most promised acts, though the promise states that the performance of them shall be by a particular person, may, nevertheless, legally be performed by some one else as agent or assignee. When A promises that he will pay money he may pay it by the hand of B. Similarly when A and B promise that they will pay money, they need not actually pay the money jointly; not only either A or B may pay it, but they may delegate C to pay it in their behalf. It is only when the act to be performed is personal in its character that it can be performed only by the person named in the promise. A promise by A and B that C shall paint a portrait or that B shall paint a portrait, or that A and B together shall collaborate on a portrait, can only be performed in accordance with its terms. Accordingly, as a contract to employ is held to be personal, a contract by A and B that they will employ C can be performed only by A and B jointly. Therefore, the death of one member of partnership is generally held to dissolve 4 Illustrations of these distinctions may be found in the cases. In Copland v. Laporte, 3 A. & E. 517, L. & R. covenanted that they would pay rent, and, further, that L. would keep the premises in repair. This was held not only a joint covenant by L. & R. that they would pay rent, but also a joint covenant that L. would keep the premises in repair. In White v. Tyndall, 13 App. Cas. 263, G. W. & A. W. covenanted that they, or some one of them, should pay the reserved rent. This was held a joint covenant. It must be distinguished from several covenants by G. W. that he will pay the rent and by A. W. that he also shall be liable for the rent. In Walter v. Rafalsky, 113 N. Y. App. D. 223, 98 N. Y. S. 915, affd. 186 N. Y. 543, 79 N. a. E. 1118, several persons agreed jointly that one of them should buy stock from the plaintiff. In Thompson v. Crocker, Rice (S. Car.), 23, two persons executed an instrument as follows: "I promise........to execute ...mortgage to T. for any piece of land he may wish, to pay him a debt of $150, which we owe him." One of the signers subsequently executed the mortgage to T which he accepted. It was held that the written instrument was an acknowledgment of a joint debt; and notwithstanding the delivery of a several mortgage, the debt remained joint. It will be seen that this promise was several that one of the debtors should give the mortgage but both the debtors still remained bound to pay the debt. a contract made by the firm to employ a servant.5 Whether the courts have not gone too far in considering a contract to employ necessarily personal in its nature is a question immaterial for discussion in this connection. The question by whom performance must be rendered was thus summarized in a recent case: "Whether or not the contract was of such a character as to require the personal service of all the three joint contractors in its performance and to be terminated by the death of one or of two of them is to be determined by a construction of the contract itself and depends upon the intention of the parties." But by whomsoever the act contracted for is to be done, the unexcused failure to perform it renders liable all who have contracted that it shall be done. § 317. Nature of joint rights. In an entirely analogous way several persons, who are promisees under a contract, may be treated as a unit and, thereby, together become entitled to the performance of the promise. In case of joint promisees, it would be conceivable not simply to require their joinder in the action, but also to require their joinder in the seizure of any property of the defendant taken in satisfaction of the claim; or in the receipt of any performance from the promisor given without litigation. But though each joint promisee is not regarded as individually entitled to the full performance of the promise in the same way that a joint promisor is subjected to entire liability for it, a somewhat similar effect is produced by implying an agency on the part of each joint promisee to receive or collect performance on behalf of all those entitled to it.8 5 Tasker v. Shepherd, 6 H. & N. 575; Cowasjee Nanabhoy v. Lallbhoy Vullubhoy, L. R. 3 Ind. App. 200; Brace v. Calder, [1895] 2 Q. B. 253; Hoey v. McEwan, 5 Sess. Cas. 3d ed. Ser. 814; Griggs v. Swift, 82 Ga. 392, 9 S. E. 1062, 5 L. R. A. 405, 14 Am. St. Rep. 176; Greenburg v. Early, 30 Abb. (N. C.) 300, 303. But see Phillips v. Alhambra Palace Co., [1901] 1 K. B. 59; Hughes v. Gross, 166 Mass. 61, 43 N. E. 1031, 32 L. R. A. 620, 55 Am. St. Rep. 375; Nickerson v. Russell, 172 Mass. 584, 53 N. E. 141; Fereira v. Sayres, 5 W. & S. 210. See infra, § 1941. 7 Babcock v. Farwell, 245 Ill. 14, 44, 91 N. E. 683, 137 Am. St. Rep. 284. 8 Osborn v. Martha's Vineyard R. Co., 140 Mass. 549, 5 N. E. 486. See also Wallace v. Kelsall, 7 M. & W. 264; Husband v. Davis, 10 C. B. 645. § 318. Antiquity of the law of joint obligations. The law of joint rights and duties is of considerable antiquity. It was derived from the law of joint tenancy in real property; the courts endeavoring to apply to joint covenants the principles which were early established in regard to joint estates. How far early doctrines have gradually developed into different modern rules will appear in the discussion of the separate features of joint rights and duties. § 319. Joint obligations in the civil law. The Roman law, like the common law, recognized the possibility of a community of obligations for the payment of the same debt, but the lines of distinction drawn in the Roman law are not the same as those of the common law. In the first place, in direct contrast with the rule of the common law, a collective promise by several persons in the Roman law, presumptively made each of them liable for only a ratable share of the thing promised; and such is the rule of the modern civil law.10 9 A promise to several collectively in the Roman law likewise, presumptively entitled each of them to only a ratable share of the performance.11 But in the case of a correal obligation or of a solidary obligation, some of the incidents of the English law of several liability for the same debt may be found. It is a matter of dispute among Roman lawyers whether any distinction existed between a solidary obligation and a correal obligation.12 The distinction, whether actually existing or not, has no analogy in English or American law, and need not be dwelt upon. It is enough to say that it was of the essence of a correal obligation that each co-debtor was individually liable for the whole debt, and each co-creditor had full authority to enforce the obligation. The correal debtor, therefore, resem 'Sohm's Institutes, Sec. 74, n. 1. 10 3 Larombière Obligations, 256, et seq. See also the German Civil Code, Secs. 420 et seq. Such also is the law of Louisiana: "A joint obligation under the law of Louisiana binds the several parties thereto only for their proportion of the debt." Groves v. Sentell, 153 U. S. 465, 38 L. Ed. 785. 11 Hunter's Roman Law (3d ed.), 554. 12 In support of the distinction between the two, see Sohm's Institutes, Sec. 74. In opposition to the distinction see Hunter's Roman Law (3d ed.), 561. |