Flynn, 238 111. 636, 87 N. E. 866; Curry v. kansas etc. Ry. Co., 68 Kans. 6, 48 Pac. 579; Nabore v. Producers' Oil Co., 140 La. 985, 74 So. 527, L. R. A. 1917 D. 1116; Emery v. Hitchcock, 12 Wend. 156; Emmuleth v. Home Benefit Assoc, 122 N. Y. 130, 26 N. E. 234, 9 L. R. A. 704; Anderson v. Nichols (Vt.), 107 Atl. 116.
53 Spangenberg v. Spangenberg, 19 Cal. App. 439, 126 Pac 379; Atlanta Ac. Ry. Co. v. Thomas, 60 Fla. 412, 63 So. 610; L. L. Satler Lumber Co. v. Exler, 239 Pa. 135, 86 Atl. 793; Anderson v. Nichols (Vt.), 107 Atl. 116.
54 Haddon v. Ayere, 1 E. & E. 118. See also Poole v. Hill, 6 M. & W. 836.
55Villard v. Moyer, 64 N. Y. Misc, 369, 104 N. Y. S. 637, 123 N. Y. App. Div. 629, 107 N. Y. S. 1054.
56 Withers v. Bircham, 3 B. A C. 264.
See also Palmer v. Sparshott, 4 M. & G. 137.
57 L. L. Satler Lumber Co. v. Exler, 239 Pa. 135, 86 Atl. 793.
58 Pullen v. Palmer, 5 Mod. 72, 150, 151; and see Allen v. South Penn Oil Co., 72 W. Va. 155, 77 S. E. 906.
59 Harrison v. Barnby, 5 T. R. 246, 249; Foley v. Addenbrooke, 4 Q. B. 197; Thompson v. Hakewill, 19 C. B. (N. S.) 713. See also Stevens v. Jackson, 180 Mich. 131, 140 N. W. 636. But if a covenant was originally made to one lessor and his interest afterwards passed to several persons, the covenant is thereby severed and each of the persons entitled could sue for a breach and recover the damages which he had personally suffered. Twynam v. Pick-aid, 2 B. A Ald. 105; Simpson v. Clayton, 4 Bing. (N. C.) 758, 781; Ackroyd
Sometimes though there are several covenantees, but a single one of them is interested in the performance of the covenant, as where the covenant is to A and B to pay money to A. In such a case it is held that the right of action is joint and both must sue.61 Where a bond upon its face runs to two or more persons jointly, the action must be brought by all of them, no matter what may be the terms of defeasance.62 "If one of two covenantees does not execute the instrument he must join in the action, because whatever may be the beneficial interest of either, their legal interest is joint." 63
Where a promissory note or bill of exchange is payable to v. Briggs, 14 W. R. 25; Roberta A Holland, (1893) 1 Q. B, 666. But it seems that such persons could also join in a single action and recover all the damage to which they were in the aggregate entitled. Kitchen v. Buddy, 1 Lev. 109; Judicature Act, Order XVI. r. 1.
60Frumberg v. Haderiein, 167 Mo. App. 717, 151 S. W. 160.
61Anderson v. Martindale, 1 East, 497; Hopkmsonn. Lee, 6 Q. B. 964. In the latter case though the defendant covenanted with the plaintiff to pay him money, and "as a separate and distinct covenant" with C that he would pay the plaintiff money, it was held that the plaintiff alone could not sue on the covenant. Cf. Keightley v. Watson, 3 Exch. 716. There the defendants covenanted with K "and as a separate covenant" with D, that they, the defendants, would pay to K or to D in case D should have paid K, the sum of six thousand pounds; and, further, that the defendants would in the meantime pay K interest on the unpaid purchase money. In a suit for nonpayment of interest, K sued alone, and was held entitled to recover. The court held that as to the principal indebtedness each promisee had a separate interest, and would therefore be entitled to sue alone for that. As to the promise to pay interest, K alone was to derive any benefit from the performance of the promise. Had the promise to pay interest been jointly to K and B, both must have joined in the action, but as K not only was solely interested but was also the only party to whom the promise to pay interest was made, he must sue alone.
62 Farni v. Teason, 1 Black, 309, 17 L. Ed. 67; Phillips v. Singer Mfg. Co., 88 111. 305; The International Hotel Co. v. Flynn, 238 111. 636, 87 N. E. 856. In the case last cited the bond was made to two persons jointly, but the defeasance clause provided the penal sum should not be paid if the obligors paid the obligees such sums as might be awarded in certain litigation to "any one or more" of the obligees, "jointly or severally." It was held that an action on the bond could not be maintained by one only of two obligees, both being living.
62Philadelphia, W. & B. R. Co. v. Howard, 13 How. 307, 337, 14 L. Ed. 157; citing Stingsby's Case, 5 Coke, 18 b; Petrie v. Bury, 3 B. & C. 353; Weth-erell v. Langston, 1 Exch. 634; quoted in International Hotel Co. v. Flynn, 238 111. 636, 643, 87 N. E. 855.
the order of A or B, the words were given by most courts, prior to the enactment of the Negotiable Instruments Law, a literal construction, and the instrument was held non-negotiable because of uncertainty as to the payee; 64 but a few decisions have held otherwise.65 Under the Uniform Negotiable Instruments Law 66 it is made clear that such an instrument is negotiable, but it is not determined whether the interest of the payees is joint or alternative. Though there seems no logical reason for construing the word "or" as meaning "and," now that no disagreeable consequences will follow from giving the word its natural meaning, yet as the weight of authority prior to the enactment of the statute strongly supported the conclusion that the writing even though not negotiable was evidence of a joint right,67 some courts are likely to continue to adopt this construction.68 Such an instrument was given its literal meaning prior to the passage of the Act in a few cases;69 and under the statute several decisions are to the same effect.70 Where the two payees may be regarded as identified in interest as in the case of an instrument payable to a husband or his wife where the rights of a married woman are still governed by the common law,71 or to a company or its treasurer,72 there is no difficulty. In the one case the note is in legal effect payable to the husband; in the other, to the corporation.
64 Blanckenhagen v. Blundell, 2 B. & Ald 417; Mussetoian v. Oakes, 19 111. 81, 68 Am. Dec. 583; Bennington v. Dinsmore, 2 Gill. 348; Osgood v. Pearsons, 4 Gray, 455; Carpenter v. Famsworth, 106 Mass. 561, 8 Am. Rep. 360; Walrad v. Petrie, 4 Wend. 575; Quinby v. Merritt, 11 Humph. 439, 440; Reed v. Reed, 11 Up. Can. Q. B. 26; Inglis v. Wiseman, 2 Mor. Dict. Decis. 1404.
65Samuels v. Evans, 1 McL. 473; Spaulding v. Evans, 2 McL. 139; Fort v. Delee, 22 La. Ann. 180; Ellis v. Mc-Lemoor, 1 Bail. 13; Hopkins v. Halliburton, 6 Tex. Civ. App. 451.
66Sec. 8, infra, Sec.1139.
67 Collyer v. Cook, 28 Ind. App. 272, 275, 62 N. E. 655; Carr v. Bauer, 61 111. App. 504; Osgood v. Pearsons, 4 Gray, 456; Willoughby v. Willougnby,
5 N. H. 244; Parker v. Carson, 64'N. C. 563 (bond); Westgate v. Healy, 4 R. I. 523; Quinby v. Merritt, 11 Humph. 439, 440.
68 Pasaut v. Heubner, 81 N. Y. Misc. 249, 142 N. Y. S. 546; Smith v. Haire, 133 Tenn. 343, 181 S. W. 161.
69Samuels v. Evans, 1 McL. 473; Spaulding v. Evans, 2 McL. 139; Ellis P. McLemoor, 1 Bail, 13.
70Union Bank v. Spies, 151 Iowa, 178, 130 N. W. 928; Voris v. Schoon-over, 91 Kan. 530, 138 Pac. 607, 50 L. R. A. (N. S.) 1097; Page v. Ford, 65 Oreg. 450,131 Pac. 1013, 45 L. R. A. (N. S.) 247, Ann. Cas. 1915 A 1048.
71 Young v. Ward, 21 111. 223; Smith v. Haira, 133 Tenn. 343, 181 S. W. 161.
72Atlantic M. F. Ins. Co. v. Young, 38 N. H. 451, 75 Am. Deo. 200.