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.1 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 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
1 Abbot v. Smith, 2 W. Bl. 947, 9*9; Miller v. Mynn, 1 E. & E. 1075; Lein-kauff 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. 4 Ch. 155, 169.
2 See infra, Sec. 327.
3 Griffith on Joint Rights and Liabilities, 2.
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 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.6 The question by whom performance must be rendered was thus summarized in a recent case:
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. 4 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. 643, 79 N.
E. 1118, several persons agreed jointly that one of them should buy stock from the plaintiff. In Thompson v. Crocker, Rice (8. Car.), 23, two persons executed an instrument as follows: "I promise........to execute a..........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.
"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."7 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.