Following the analogy of the rule of real property that an estate granted to two persons created a joint tenancy rather than a tenancy in common, it was early held and, except as changed by statute,20 the law remains that promises by two or more persons create a joint duty unless the contrary is stated.21 "It is a general presumption of law when two or more persons undertake an obligation that they undertake jointly, words of severance are necessary to overcome this primary presumption."22 The fact that the interests of the obligors in the contract are diverse, does not prevent the duty from being joint.23 But where, as in a subscription paper,
19Thus in Bro. Abr. Covenant 49, the case is stated of a covenant made with twenty persona, and with each of them to make certain sea banks. Failure to perform the promise resulted in damages to the land to two, and they were allowed to sue without the others. Brooke adds that "it seems that each should bring an action by himself." It is difficult to find any logical objection to such separate actions, and also it would seem that there had been a violation of a covenant made jointly to the twenty, slingsby's Case, 5 Coke, 18 b, would, however, probably be regarded generally as having settled the law that a right cannot be joint and several.
20See infra, Sec.336.
21 Sheppard's Touchstone, 375; Fors-ter v. Taylor, 3 Camp. 49; White v. Tyndall, 13 A. C. 263; Armstrong v. Cahill, 6 L. R, Ir. 440; Noyes v. Barnard, 63 Fed. 782, 11 C. C. A. 424; Milner Bank Ac. Co. v. Whipple's Est.,
61 Colo. 252, 156 Pac. 1098; Eller v. Lacy, 137 Ind. 436, 36 N. E. 1088; Nabors v. Producers' Oil Co., 140 La. 985, 74 So. 527, L. R. A. 1917 D. 1115; New Haven & Northampton Co. v. Hayden, 119 Mass. 361; Eveleth v. Sawyer, 96 Me. 227, 52 Atl. 639; Hill v. Combs, 92 Mo. App. 242; Turley v. Thomas, 31 Nev. 181, 101 Pac. 568, 135 Am. St. 667; Alpaugh v. Wood, 53 N. J. L. 638, 23 Atl. 261; Kortvelly-essy v. Manhattan Cooperage Co., 162 N. Y. App. Div. 285,147 N. Y. S. 686; Turley v. Thomas, 31 Nev. 181, 101 Pac. 568; Clements v. Miller, 13 N. Dak. 176, 100 N. W. 239; Pittaley p. King, 206 Pa. 193, 55 Atl. 920; Mints v. Tri-County Natural Gas Co., 259 Pa. 477, 103 Atl. 286; Morrison v. American Surety Co., 224 Pa. 41, 73 Atl. 10; Smith v. Doty, 91 Wash. 315, 157 Pac 881; Elliott v. Bell, 37 W. Va. 834,17 S.E.399.
22 Philadelphia v. Reeves, 48 Pa. 472.
23Alpaugh v. Wood, 53 N. J. L.
the obligors state the amount of the subscription of each, each is liable for only that amount, although there may be no words of severance in the promise. This may be contrary to early law, but it is supposed to be, and doubtless is, in accord with the intention of the parties.24 And there may be other cases where the interests are so clearly several, that a court will disregard the ordinary presumption.25 If by agreement or implication of law the contract of two or more obligors with then-obligee is joint, the obligee is entitled to enforce the obligation as a joint one, and is not bound by any agreement, of which he was ignorant, of the obligors severally with one another, that each shall be liable for a ratable share.26 Partners are always bound jointly and not severally for the debts and contracts of the firm, unless it is otherwise provided by local statutes;27 but under the statutes or decisions of many jurisdictions their liability is both joint and several.28 The members of such an unincorporated association as amounts to a partnership in legal effect are similarly liable.29 The members of an unincorporated association which is not a partnership are bound on principles of agency to the extent which they have authorized their officers or fellow members to bind them.30 It would seem generally true that the authority conferred is to bind as a body all those giving the authority, that is, that the liability created is joint.31 But it would doubtless be possible for members to authorize officers to bind each one of them individually, or even all of them jointly and each one of them severally.32
638,23 Atl. 201; Philadelphia v. Reeveu, 48 Pa. 472. Under the California Civil Code, however (Sec. 1659), if all the promisors receive some benefit, the obligation is presumed to be joint and several; and see Smith v. Woodward,
51 Col. 311, 117 Pac. 140; Rutherford v. Holbert, 42 Okl. 735, 142 Pac. 1099, L. R. A. 1915 B. 221.
24 Davis, etc., Co. v. Barber, 51 Fed. 148; Davis, etc, Co. v. Jones, 66 Fed. 124; Chicago, etc., Co. v. Graham, 78 Fed. 83, 41 U. S. App. 680, 23 C. C. A. 657; Landwerlen v. Wheeler, 106 Fed. 523, 5 N. E. 888; Price v. Railroad Co., 18 Ind. 137; McArthur v. Board, 119 Ia. 562, 93 N. W. 580; Hall v. Thayer, 12 Met. 130; Davis v. Belford, 70 Mich. 120, 37 N. W. 919; Gibbons v. Bente, 51 Minn. 490, 53 N. W. 756, 22 L. R. A 80; Cornish v. West, 82 Minn. 107, 84 N. W. 750,
52 L. R. A. 355; Lawson v, Muse, 180 Mo. App. 35, 165 S. W. 396; Frost v. Williams, 2 S. Dak. 457, 50 N. W. 964; Bank of American Fork v. Smith, 44 Utah, 284, 140 Pac. 122; Gibbons v. Grinsel, 79 Wis. 365, 48 N. W. 255;
Hodges v. Natty, 104 Wis. 464, 80 N. W. 726. See also Collins v. Prosser, 1 B. & C. 682, and infra, Sec. 323, v. 36. Cf. Davis v. Shafer, 50 Fed. 764; Darnell v. Lyon, 85 Tex. 455, 22 S. W. 304, 960. See further 22 L. R. A. 80, n.; L. R. A. 1915 B, 224. Where subscribers do not define the amount for which each subscribes they are liable jointly for the total amount. See Cornish v. West, 82 Minn. 107, 84 N. W. 750.
25Spangenberg v. Spangenberg, 19 Cal. App. 439, 126 Pac. 379 (statutory); Manistee Nav. Co. v. Louis Sands Ac. Co., 174 Mich. 1, 140 N. W. 565.
26 Knowlton v. Parsons, 198 Mass. 439, 84 N. E. 798.
27 Mason v. Eldred, 6 Wall. 231, 18 L. Ed. 783; Stover v. Stevens, 21 Calif. App. 261, 131 Pac. 332; Stewart v. Terwilliger, 177 Mich. 313, 143 N. W. 17; Parsons on Partnership (4th ed.),Sec. 262. Cf. 11 Col. L. Rev. 101, by Professor Burdick.
28 litre Perkins' Est., 166 Mo. App, 170, 148 S. W. 969; People v. Knapp, 206 N. Y. 373, 99 N. E. 841.