that the obligors have a separate interest does not involve the consequence that their obligations are several, but, as has been said, in the case of subscription papers and other cases where a separate amount is attached to the name of each obligor, such promises as "we agree to pay the sums set opposite our respective names" have been held to create several promises 35 -not it will be observed each for the same performance, but each for a different performance. It would be perfectly possible to assume a joint liability to pay each of these sums, but it would then be so unreasonable to divide the sums and set them opposite the different names that as a matter of construction it has been held separate obligations are intended.36 And in subscription contracts the usual presumption that joint liability is intended is reversed and separate obligations are presumed;37 though it is of course possible for subscribers jointly to agree to pay a gross sum. 38 The nature of the contract may also in other instances show an intention to give rise to a several rather than a joint liability; thus, a contract to the following effect was held to create a several liability. "A, having this day loaned the N Mining Co. fifteen thousand dollars, we jointly and severally guarantee the repayment of said loan." Signed: B, C, A. Though this contract by its very terms is stated to be joint as well as several, the court held no joint liability could be created; for A, being the promisee, could not legally be a joint promisor, and the contract was therefore in legal effect the several obligation of B and C to A.39 Likewise the circumstance that the promises are contained in separate instruments though in identical terms shows the 35 See supra, § 322. 36 O'Connor v. Hooper, 102 Cal. 528, 36 Pac. 939; Robertson v. March, 4 Ill. 198; Landwerlen v. Wheeler, 106 Ind. 523, 5 N. E. 888; Davis v. Murray, 102 Mich. 217, 60 N. W. 437; Gibbons v. Bente, 51 Minn. 499, 53 N. W. 756, 22 L. R. A. 80; Davis v. Creamery Co., 48 Neb. 471, 67 N. W. 436; Connecticut &c. R. R. Co. v. Bailey, 24 Vt. 465; Hodges v. Nalty, 104 Wis. 464, 80 N. W. 726; Chicago Bldg. & Mfg. Co. v. Higginbotham (Miss.), 29 So. 79. See also Villard v. Moyer, 123 N. Y. App. D. 629, 107 N. Y. S. 1054, and cases cited supra, § 322, n. 24. 37 Hall v. Thayer, 12 Met. 130; Davis v. Belford, 70 Mich. 120, 37 N. W. 919. 38 Davis v. Shafer, 50 Fed. 764. 39 Colt v. Learned, 118 Mass. 380. See also Smith v. Woodward, 51 Col. 311, 117 Pac. 140; Gaines v. Vandecar, 59 Or. 187, 115 Pac. 721, 1122. promises to be several.40 It is possible in the same contract that some promises shall be joint and others by the same promisors shall be several.11 § 324. When obligors are bound joint and severally. Since, as has been seen, the mere fact that several persons binding themselves without words of severance creates a joint liability, it follows that in order to create in addition a several liability there must also be words by which each obligor binds himself separately as "we and each of us promise," 42 or at least an intention manifested in some way that the obligation shall be joint and several.43 In one instance, by a special rule of construction, words have been held to amount to a joint and several promise, though not so in express terms. This is where a promise is expressed in the singular but is signed by several persons, as "I promise to pay," signed by A. B. and C.44 By Statute in California,45 it is provided that where all the parties who unite in a promise receive some benefit from the consideration, their promise is presumed to be joint and sev 40 Virginia Coal Co. v. Virginia-Lee Co., 113 Va. 395, 74 S. E. 177. 41 Buster v. Fletcher, 22 Ida. 172, 125 Pac. 226; Gibbons v. Bente, 51 Minn. 499, 53 N. W. 756, 22 L. R. A. 80; Krbel v. Krbel, 84 Neb. '60, 120 N. W. 935. See also People v. Hartley, 21 Cal. 585, 82 Am. Dec. 758, and supra, § 320. 42 "If two, three, or more bind themselves in an obligation thus, obligamus nos, and say no more, the obligation is and shall be taken to be joint only, and not several." Shep. Touch. 375. See also Rees v. Abbott, Cowp. 832; People v. Love, 25 Cal. 520; Jernigan v. Wimberly, 1 Ga. 220; Savannah &c. Trust Co. v. Purvis, 6 Ga. App. 275, 65 S. E. 35; Pogue v. Clark, 25 Ill. 333; Harvey v. Irvine, 11 Ia. 82; Bank of Louisiana v. Sterling, 2 La. 60, 62; Mayor of New Orleans v. Ripley, 5 La. 120, 122, 25 Am. Dec. 175; Meyer v. Estes, 164 Mass. 457, 41 N. E. 683, 32 L. R. A. 283; Morrison v. American Surety Co., 224 Pa. 41, 73 Atl. 10. 43 Virginia Coal Co. v. Virginia-Lee Co., 113 Va. 395, 74 S. E. 177. 44 March v. Ward, Peake's Cases 130; Scheid v. Leibshultz, 51 Ind. 38; Bank of Louisiana v. Sterling, 2 La. 60, 62; Mayor of New Orleans v. Ripley, 5 La. 120, 122, 25 Am. Dec. 175; Hemmenway v. Stone, 7 Mass. 58, 5 Am. Dec. 28; Van Alystyne v. Van Slyck, 10 Barb. 383; Dill v. White, 52 Wis. 456, 9 N. W. 404. This is so provided as to bills and notes by the Negotiable Instruments Law, Sec. 17 (7), infra, § 1143, which has been passed in nearly all of the United States. Cf. Brown v. Fitch, 4 Vroom, 418. 45 Civ. Code, § 1659. See also Smith v. Woodward, 51 Colo. 311, 117 Pac. 140; Rutherford v. Holbert, 42 Okl. 735, 142 Pac. 1099, L. R. A. 1915 B 221. eral. 46 And in many other States all obligations, which at common law would be joint, by Statute create joint and several liabilities, or create liabilities presumptively joint and several in the absence of something to show a contrary intention. 48 By the Uniform Negotiable Instruments Law 49 the obligations of joint payees or joint indorsees who indorse, are joint and several. If a number of persons are bound jointly and severally, the obligee must either sue them all jointly, according to the rules governing joint liabilities, or sue any one or more of them separately; he cannot join any number less than the whole.50 § 325. When obligees are entitled jointly and when severally. As has been seen 51 obligees, as a matter of law, cannot be entitled jointly and severally. It is necessary, therefore, to determine where there are several obligees whether their rights are joint or whether they are several. An important matter to observe here is whether the interests of the obligees are separate or whether they have between them but a single interest. It was at one time supposed that this test was so absolute that no words however express could justify construing the rights of obligees as separate if their interests were single or vice versa. But it is now well established that the rule is one of construction and creates merely a presumption, and that it is impossible to say that parties may not, if they please, use joint words so as to express a joint covenant, though their interests are several, but, "if there be words capable of two constructions, we must look to the interest of the parties which they intend to protect, and construe the words according to that interest. 46 Gummer v. Mairs, 140 Cal. 535, 74 Pac. 26; Bell v. Adams, 150 Cal. 772, 90 Pac. 118. 47 Cole v. Harvey, 142 Ia. 574, 120 N. W. 97; Knapp v. Hanley, 153 Mo. App. 169, 132 S. W. 747. 48 McMaster v. City Nat. Bank, 23 Okl. 550, 101 Pac. 1103. 49 Sec. 68, infra, § 1163. 50 Roll. Abr. 148; Streatfield v. Halliday, 3 T. R. 779, 782; Chicago & A. Ry. Co. v. New York &c. R. Co., 24 1952 Fed. 516, 517; Stevens v. Catlin, 152 51 Infra, § 321. 52 Keightley v. Watson, 3 Exch. 716, per Parke, B. See also James v. Emery, 5 Price, 529, 533; Sorsbie v. Park, 12 M. & W. 146, 156; Bradburne v. Botfield, 14 M. & W. 559; Farni v. Tesson, 1 Black, 309; Beckwith v. Talbot, 95 U. S. 289, 24 L. Ed. 496; Atlanta &c. Ry. Co. v. Thomas, 60 Fla. 412, 53 So. 510; International Hotel Co. v. This rule is not always very easy to apply, though its validity must be regarded as established. As a further aid to construction, it has also been said that where the consideration furnished by obligees is several, their interests may prima facie be regarded as several and not joint, if other features of the contract do not clearly conflict with this construction.53 A covenant by several continuing directors to indemnify several retiring directors was held to give a several right to each of the latter.54 So a covenant to carry stock for several persons "pro rata according to their respective interests" in a corporation, was held to create several rights.55 So a covenant in a deed, reciting the grant by another of two annuities to A and B respectively, and covenanting with A and B that the annuities should be paid by the covenantor, in case of the grantor's failure to pay them, was held to create several rights in A and B against the covenantor.56 So a covenant guaranteeing two creditors payment of their claims against one who owed each of them, though there were no words of severance in the covenant, was held to give each covenantee a several right.57 On the other hand, a covenant to coöwners of property in regard to the property, is a covenant to them jointly, whether they are joint tenants, 58 or tenants in common. 59 Flynn, 238 Ill. 636, 87 N. E. 855; Curry v. Kansas &c. Ry. Co., 58 Kans. 6, 48 Pac. 579; Nabors v. Producers' Oil Co., 140 La. 985, 74 So. 527, L. R. A. 1917 D. 1115; Emery v. Hitchcock, 12 Wend. 156; Emmuleth v. Home Benefit Assoc., 122 N. Y. 130, 25 N. E. 234, 9 L. R. A. 704; Anderson v. Nichols (Vt.), 107 Atl. 116. 53 Spangenberg v. Spangenberg, 19 Cal. App. 439, 126 Pac. 379; Atlanta &c. Ry. Co. v. Thomas, 60 Fla. 412, 53 So. 510; L. L. Satler Lumber Co. v. Exler, 239 Pa. 135, 86 Atl. 793; Anderson v. Nichols (Vt.), 107 Atl. 116. 54 Haddon v. Ayers, 1 E. & E. 118. See also Poole v. Hill, 6 M. & W. 835. 55 Villard v. Moyer, 54 N. Y. Misc. 369, 104 N. Y. S. 537, 123 N. Y. App. Div. 629, 107 N. Y. S. 1054. 56 Withers v. Bircham, 3 B. & C. 254. See also Palmer v. Sparshott, 4 M. & 57 L. L. Satler Lumber Co. v. Exler, 239 Pa. 135, 86 Atl. 793. 58 Pullen v. Palmer, 5 Mod. 72, 150, 151; and see Allen v. South Penn Oil Co., 72 W. Va. 155, 77 S. E. 905. 59 Harrison v. Barnby, 5 T. R. 246, 249; Foley v. Addenbrooke, 4 Q. B. 197; Thompson v. Hakewill, 19 C. B. (N. S.) 713. See also Stevens v. Jackson, 180 Mich. 131, 146 N. W. 636. But if a covenant was originally made to one lessor and his interest afterwards passed to several persons, the covenant is thereby severed and each of the persons entitled could sue for a breach and recover the damages which he had personally suffered. Twynam v. Pickard, 2 B. & Ald. 105; Simpson v. Clayton, 4 Bing. (N. C.) 758, 781; Ackroyd So a promise to two lawyers to pay a sum of money in return for certain services to be rendered by them in a suit, is joint.60 Sometimes though there are several covenantees, but a single one of them is interested in the performance of the covenant, as where the covenant is to A and B to pay money to A. In such a case it is held that the right of action is joint and both must sue.61 Where a bond upon its face runs to two or more persons jointly, the action must be brought by all of them, no matter what may be the terms of defeasance.62 "If one of two covenantees does not execute the instrument he must join in the action, because whatever may be the beneficial interest of either, their legal interest is joint." 63 Where a promissory note or v. Briggs, 14 W. R. 25; Roberts v. Holland, [1893] 1 Q. B. 665. But it seems that such persons could also join in a single action and recover all the damage to which they were in the aggregate entitled. Kitchen v. Buckly, 1 Lev. 109; Judicature Act, Order XVI. r. 1. 60 Frumberg v. Haderlein, 167 Mo. App. 717, 151 S. W. 160. 61 Anderson v. Martindale, 1 East, 497; Hopkinson v. Lee, 6 Q. B. 964. In the latter case though the defendant covenanted with the plaintiff to pay him money, and "as a separate and distinct covenant" with C that he would pay the plaintiff money, it was held that the plaintiff alone could not sue on the covenant. Cf. Keightley v. Watson, 3 Exch. 716. There the defendants covenanted with K "and as a separate covenant" with D, that they, the defendants, would pay to K or to D in case D should have paid K, the sum of six thousand pounds; and, further, that the defendants would in the meantime pay K interest on the unpaid purchase money. In a suit for nonpayment of interest, K sued alone, and was held entitled to recover. The court held that as to the principal indebtedness each promisee had a separate interest, and would therefore be entitled bill of exchange is payable to to sue alone for that. As to the promise to pay interest, K alone was to derive any benefit from the performance of the promise. Had the promise to pay interest been jointly to K and B, both must have joined in the action, but as K not only was solely interested but was also the only party to whom the promise to pay interest was made, he must sue alone. 62 Farni v. Tesson, 1 Black, 309, 17 L. Ed. 67; Phillips v. Singer Mfg. Co., 88 Ill. 305; The International Hotel Co. v. Flynn, 238 Ill. 636, 87 N. E. 855. In the case last cited the bond was made to two persons jointly, but the defeasance clause provided the penal sum should not be paid if the obligors paid the obligees such sums as might be awarded in certain litigation to "any one or more" of the obligees, "jointly or severally." It was held that an action on the bond could not be maintained by one only of two obligees, both being living. 63 Philadelphia, W. & B. R. Co. v. Howard, 13 How. 307, 337, 14 L. Ed. 157; citing Slingsby's Case, 5 Coke, 18 b; Petrie v. Bury, 3 B. & C. 353; Wetherell v. Langston, 1 Exch. 634; quoted in International Hotel Co. v. Flynn, 238 Ill. 636, 643, 87 N. E. 855. |