In most of the United States statutes have somewhat changed the common law in regard to joint obligations. These statutes are, however, not uniform in character. They are aimed chiefly against the rule requiring the joinder of all joint debtors, that declaring a joint obligation discharged by either a judgment or release of a joint debtor, and that providing that on the death of a joint obligor his estate is freed from liability to the creditor. Less often is any change made in the rights of joint obligees, and it will be noticed that a common provision in these statutes that the liability of joint debtors shall be joint and several does not affect the rule that the release of one discharges all.86 A brief summary of the more important statutory enactments on the subject follows:86a
In Arizona 88 joint contractors are bound jointly and severally, and judgment against one is no bar to suit against the others. Release of one is also no bar; but the court may order a plaintiff to bring in as defendants all that are jointly interested.
83 Gordon v. Moore, 44 Ark. 349, 51 Am. Rep. 606; Smith v. State, 46 Md. 617; State v. Matson, 44 Mo. 305; Schock v. Miller, 10 Pa. St. 401; Maasey v. Brown, 4 S. C. 85. See also Morgan v. Smith, 70 N. Y. 537. But see Draper v. Weld, 13 Gray, 580, and cases cited supra, n. 44. 84See infra, Sec.340.
85 See in the next section statutes of Col., Minn., Miss., Mont., Nov., Utah, Vt, Va. and Wis.
86a See also Secs. 17(7), 68, 78 of the Uniform Neg. Inst. Law, infra, Sec.Sec. 1143, 1163, 1167.
87 Code (1907), Sec.Sec. 3089, 5384.
88Civ. Code (1913), par. 551.
In Arkansas 89 joint obligations are made joint and several, and survivorship is abolished.
In California,90 where all promisors receive some benefit, their promise is presumed to be joint and several, and so it is where the promise is in the singular but is signed by more than one. Except in the above cases the promise is presumed to be joint. Contribution is provided for and full performance by one joint obligor discharges the obligation as does performance to one joint obligee. A release of a joint obligor does not discharge others unless they are mere guarantors. It will be noticed that the presumption of joint and several liability from the receipt of separate benefits by the promisors is contrary to the common-law rule.
In Colorado,91 joint obligations are made joint and several. A release of one joint debtor does not discharge others except to the extent of the full proportionate share of the one released.
In Delaware 93 obligations of two or more are made joint and several unless otherwise expressed.
In Florida 94 a promise in the singular signed by several is joint and several.
In Illinois,95 all joint obligations are made joint and several.
By the statutes of Indian Territory,96 survivorship is abolished and joint obligations are made joint and several.
In Indiana 97 a joint obligee who refuses to join as plaintiff may be joined as defendant. Judgment against one joint debtor is no bar against others who are not summoned and did not appear. On the death of a joint obligor, the obligation is treated as joint and several.
In Iowa,98 action may be brought against any joint debtors,
89Kirby and Castle's Dig. (1916), S5 5147-5149.
90Civ. Code, Sec.Sec. l430, 1432, 1474, 1475,1543, 1650, 1660.
91 Mills' Annot. Stat. (1912), Sec.Sec. 4155-4157.
92Code (1911), Sec.Sec. 1205-1207.
93 Rev. Code (1915), Sec. 2628. 94 Comp. Laws (1914), Sec.Sec. 2951-7. 95 Rev. Stat. (1917), c. 76, Sec. 3. 96 Stat. (1899), Sec.Sec. 2578, 2580. 97 Burns Annot. State., Sec.Sec. 270, 326, 2830. 98Code (1897), Sec.3465.
or all joint debtors. If any die the action may be brought against any or all the survivors, together with any or all the personal representatives of the deceased. Judgment against one joint debtor is no bar to actions against others.
In Kansas,99 a joint debtor may compromise his liability and others will not be discharged.
In Louisiana 1 joint obligations and several obligations, and obligations in solido are defined, but these terms have no common-law meanings.
In Maryland 2 representatives of persons jointly bound are bound severally. Judgment against one or more joint debtors does not discharge others who are not bound by the judgment.
In Massachusetts 3 representatives of a joint debtor who dies are bound severally. If an action is not prosecuted against all joint defendants because of the absence of some from the Commonwealth, or for any other sufficient cause, judgment against some is no bar to judgment against others.
In Michigan 4 the statute is like that of Kansas.
In Mississippi 6 discharge of one joint debtor does not discharge others, but if the debtor discharged has paid more than his ratable share, the whole payment will be credited on the debt. If he has paid less than his ratable share, then that whole share shall be credited. A creditor may sue one or more joint debtors and judgment against one does not discharge the other;
In Missouri 7 joint obligations are made joint and several. A joint debt survives against representatives of a deceased debtor as well as against the survivors, and a joint debt may be enforced by action against any one or more of the debtors.
In Montana 8 a release of one joint debtor does not extinguish the obligation of any of the others; but a discharge of one amounts to payment of the proportionate interest of the debtor discharged. Where all the promisors receive some benefit their promise is presumed to be joint and several. This provision is identical with that in California Civil Code, Sec. 1650 and is commented on it in that connection. A promise in the singular signed by several creates a joint and several obligation.