Survivorship

The doctrine of survivorship applicable to joint contracts does not apply to several contracts.38

Same - Contracts Both Joint And Several

207. Where a contract in respect of the promisors is both joint and several,

(a) The promisee may sue all the promisors jointly, or each one separately.

(b) If he sues jointly, he must sue all the promisors; he cannot sue less than all jointly.

34 Lurton v. Gilliam, 1 Scam. (111.) 577, 33 Am. Dec. 430. See "Contracts," Dec. Dig. (Key-No.) § 183; Cent. Dig. §§ 780-788.

35 Davis v. Belford, 70 Mich. 120, 37 N. W. 919; Price v. Railroad Co., 18 Ind. 137; Sims v. Clark, 91 Ga. 302, 18 S. E. 158; Streator v. Paxton, 201 Pa. 135, 50 Atl. 926. This is changed by statute in most states. See Steffes v. Lemke, 40 Minn. 27, 41 N. W. 302; Wibaux v. Live-Stock Co., 9 Mont. 154, 22 Pac. 492; Brown v. McKee, 108 N. C. 387, 13 S. E. 8; Wallis v. Carpenter, 13 Allen (Mass.) 19; Costigan v. Lunt, 104 Mass. 217. See "Contracts," Dec. Dig. (Key-No.) § 183; Cent. Dig. §§ 780-788.

36 Ward v. Johnson, 13 Mass. 148; Harlan v. Berry, 4 G. Greene (Iowa) 212. See "Contracts," Dec. Dig.. (Key-No.) § 183; Cent. Dig. §§ 780-788.

37 Keightley v. Watson, 3 Ex. 716; Rorabacher v. Lee, 16 Mich. 169; Hall v. Leigh, 8 Cranch, 50, 3 L. Ed. 484; Chanter v. Leese, 4 Mees. & W. 295; Geer v. School Dist, 6 Vt. 76; Catawissa R. Co. v. Titus, 49 Pa. 277; Yates v. Foot, 12 Johns. (N. Y.) 1; Burton v. Henry, 90 Ala. 281, 7 South. 925; Emmeluth v. Home Benefit Ass'n, 122 N. Y. 130, 25 N. E. 234, 9 L. R. A. 704; Shipman v. Straitsville Cent. Min. Co., 158 U. S. 356, 15 Sup. Ct 886, 39 L. Ed. 1015. See "Contracts," Dec. Dig. (Key-No.) § 183; Cent. Dig. §§ 780-788.

38 Enys v. Donnithorne, 2 Burrows, 1190; Carthrae v. Brown, 3 Leigh (Va.) 98, 23 Am. Dec. 255. See "Contracts," Dec. Dig. (Key-No.) § 183; Cent. Dig. §§ 780-788.

Again, several persons may concurrently contract respecting the same matter, binding themselves jointly and also severally.89

Where the promise is both joint and several, the promisee may, at his election, either sue all the promisors jointly, or each one of them separately.40 But he must do one or the other. He cannot sue less than all of them jointly. If, for example, there are three promisors, he cannot join two.41

A promise cannot be so made in respect of one and the same matter as to entitle several persons under it both jointly and severally. They must either be entitled under it jointly only, or severally only.42

Survivorship

As we have seen, the doctrine of survivorship does not apply to several contracts. It necessarily follows that it does not apply to joint and several contracts.

Same - Contribution Between Joint Debtors

208. Where one of several joint debtors pays the whole debt, he may, in the absence of an agreement to the contrary, enforce contribution from the others; that is, he may recover from them their proportionate share of the debt.

The rights and liabilities of persons who have contracted jointly or severally respecting the same matter as between themselves depend upon the relation in which they stand, and the agreement or understanding upon which they have joined in the contract. In general the contract itself is independent of such relation or agreement. In contracts of guaranty or suretyship, for instance, made between the creditor and the principal debtor and his sureties, the principal debtor and the sureties are usually all made debtors in equal degree to the creditor, who may recover the whole debt against all or any of them. As between themselves, however, the principal debtor is solely liable; and, if the surety is called upon by the creditor to pay any part of the debt, he may, upon payment, recover the amount from the principal debtor.43 So, where there are several sureties, who are all primarily liable for the whole debt to the creditor, and one of them is called upon to pay, each of the cosureties becomes ratably indebted to him for contribution.44 This rule is not limited to contribution between sureties, but applies to joint contractors generally. Where one of them is compelled to pay the whole debt, the law creates a promise on the part of the others to pay him their proportion, and he may sue them thereon.45 The liability is quasi contractual. This doctrine of contribution applies where the contract is joint, or both joint and several, but not where it is several only. Formerly the right to contribution could only be enforced in equity, but now, except as between sureties, it may be enforced at law, as well as in equity. In some jurisdictions contribution between sureties can still be enforced in equity only, except where a statute provides otherwise.46

39 Leake, Cont. 217; Beecham v. Smith, El., Bl. & El. 442; Hemrnenway v. Stone, 7 Mass. 58, 5 Am. Dec. 27; Klapp v. Kleckner, 3 Watts & S. (Pa.) 519. See "Contracts," Dec. Dig. (Key-No.) § 184; Cent. Dig. § 789.

40 Schilling v. Black, 49 Kan. 552, 31 Pac. 143; Carter v. Carter, 2 Day (Conn.) 442, 2 Am. Dec. 113. A judgment against all is not a bar to an action against each. People v. Harrison, 82 111. 84; Davis v. Sanderlin, 119 N. C. 84, 25 S. E. 815. Contra, United States v. Price, 9 How. 83, 13 L. Ed. 56. See "Contracts," Dec. Dig. (Key-No.) § 18.',; Cent. Dig. § 789.

41 PRESIDENT, ETC., OF BANGOR BANK v. TREAT, 6 Greenl. (Me.) 207, 19 Am, Dec. 210, Throckmorton Cas. Contracts, 335; State v. Chandler, 79 Me. 172, 8 Atl. 553. See "Contracts," Dec. Dig. (Key-No.) § 184; Cent. Dig. § 789

42 Slingsby's Case, 5 Coke, 18b; Anderson v. Martindale, 1 East, 497; Brad burne v. Botneld, 14 Mees. & W. 573; Eveleth v. Sawyer, 96 Me. 227, 52 Atl 639. See "Contracts," Dec. Dig. (Key-No.) § 184; Cent. Dig. § 789.

Clark Cont.(3d Ed.) - 31

The principal contract may in some cases be affected by the rights and relations of the several parties who join in it. For instance, in contracts of guaranty or suretyship, the creditor is bound, upon principles of equity, to abstain from any dealing with the debtor which may prejudice the surety. If he binds himself to give further time to the debtor, without the consent of the surety, the latter is discharged.47

43 Post, p. 628, note 22.

44 Post, p. 628. The quasi contract for contribution is several and not Joint. A surety therefor may enforce contribution against the estate of a deceased cosurety. Bachelder v. Fiske. 17 Mass. 464; Handley v. Heflin, 84 Ala. 600, 4 South. 725. See "Contribution," Dec. Dig. (Key-No.) § 4; Cent. Dig. §§ 3, 4; "Principal and Surety," Dec. Dig. (Key-No.) §§ 191,-196; Cent. Dig. §§ 605-631.

45Doremus v. Selden, 19 Johns. (N. Y.) 213; Sears v. Starbird, 78 Cal. 225, 20 Pac. 547; Fletcher v. Grover, 11 N. H. 368, 35 Am. Dec. 497; Jeffries v. Ferguson, 87 Mo. 244; Foster v. Burton, 62 Vt 239, 20 Atl. 326; Logan v. Trayser, 77 Wis. 579, 46 N. W. 877. See "Contribution," Dec. Dig. (Key-No.) § 8; Cent. Dig. §§ 3, 4.

46Longley v. Griggs, 10 Pick. (Mass.) 121; McDonald v. Magruder, 3 Pet. 470, 7 L. Ed. 744. See "Contribution," Dec. Dig. (Key-No.) § 9; Cent. Dig. §§ 14-22.

47 Rees v. Berrington, 2 Ves. Jr. 540; Pooley v. Harradine, 7 El. & Bl. 431; Gordon v. Bank, 144 U. S. 97, 12 Sup. Ct. 657, 36 L. Ed. 360; Chemical Co. of Canton v. Pegram, 112 N. C. 614, 17 S. E. 298; Durbin v. Kuney, 19 Or. 71, 23 Pac. 661. See "Contribution," Dec, Dig. (Key-No.) § 3; Cent. Dig. §§ 3, 4.