Cowley v. Patch

In order to maintain an action on a joint contract, whether the action is brought against one or against both of the joint contractors, it is necessary to prove the liability of both; for if one only is or ever was liable, there is not a joint, but only a several liability, and a variance from the cause of action declared on. For example, if one joint contractor is sued alone, -and does not plead in abatement the nonjoinder of the other, and judgment is rendered against the one sued, it merges the cause of action against him, and (unless otherwise provided by statute) as the two are no longer jointly liable, prevents a subsequent recovery against the other joint contractor. Ward v. Johnson, 13 Mass. 148. King v. Hoare, 13 M. & W. 494. Mason v. Eldred, 6 Wall. 231. So if, in such an action, the judgment is for the defendant, upon the ground that there is no joint liability, it is a bar to a subsequent action against the other contractor upon the joint contract. . Phillips v. Ward, 2 H. & C. 717.

*139The same rule must be applied to this case. It is tr.ie that, by reason of the death of one joint contractor, and the provision of the Gen. Sts. c. 97, § 28, enabling an action to be maintained against his administrator as if the contract had been originally joint and several, the plaintiff might maintain one action against the survivor, and another against the administrator of the deceased. Curtis v. Mansfield, 11 Cush. 152. New Haven & Northampton Co. v. Hayden, 119 Mass. 361. But the severance is merely for purposes of remedy, and the plaintiff must still, in either action, prove that the original liability was joint, and that, so far as concerns that question, both the survivor and the administrator of the deceased are liable.

This action against the executor of Graves cannot be maintained upon the ground that Graves and Fuller were originally jointly liable, because such liability is disproved by the judgments in favor of Fuller in the former actions, one at least of which is shown by the statement of facts to have been prosecuted against Graves and Fuller in the lifetime of both, and both of which were prosecuted against Fuller, after the death of Graves, solely upon the ground of a joint liability.

It cannot be maintained upon the ground that Graves was originally the sole debtor, because, as to one count, it is admitted that the original liability, if any, was joint; and, as to the other count, the plaintiff in the former action treated the liability as joint, and there are no facts tending to show that it was several.

Judgment for the defendant.