This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
Whether the liability of the promisors is joint, or several, or joint and several, depends upon the intention of the parties as ascertained from the contract by the ordinary rules of construe tion. Prima facie in the absence of statute the liability of two or more persons on the same contract is a joint liability.1 Words which indicate the common assumption of an obligation strengthen this inference. Thus the use of such words as "we promise,"2 "we will undertake,"3 "the plaintiffs are to pay,"* "the directors promise,"5 followed by the signature of the promisors, imports a joint liability. However, the context may show that such a promise is several and not joint. Thus a promise to pay a certain sum for one road grader, " to be paid by us in proportion to road tax in above-mentioned districts on lands and property which we now own " in such districts,6 or to "pay to the city the cost of the curbstone so placed opposite our land " signed by owners in severalty7 is several. The use of words such as "we agree,"8 may show an intention to assume a joint and several liability. A contract contained the words, "We the undersigned do business under the name of Oliphant & Co." ..." We also agree." This was signed by the firm name only. A renewal of this option made a part of the original was signed by all the members of the firm. This was held as to the covenant not to engage in business to be joint and several.9 A contract between two railroad companies, as one party, and a sleeping-car company as the other, whereby certain sleeping-cars were to be run "over the line of said roads between "two cities" in connection with the night passenger express through trains between said cities," was held to be a joint contract.10 By statute in some jurisdictions contracts joint in form are in effect turned into joint and several contracts.11 By statute in Louisiana a note containing the words "we promise " is a several note, binding each maker only for his proportionate share.12
1 Mason v. Eldred, 6 Wall. (U. S.) 231.
2 Evands v. Sanders, 10 B. Mon. (Ky.) 291.
3 Lurton v. Gilliam, 2 111. 577; 33
Am. Dec. 430; Payne v. Jelleff, 67 Wis. 246; 30 N. W. 526.
4 Groves v. Sentell, 153 U. S. 465, 476.
1 White v. Tyndall, 13 App. Cas. 263; Noyes v. Barnard, 63 Fed. 782; 11 C. C. A. 424; Eller v. Lacy, 137 Ind. 436; 36 N. E. 1088; Eve-leth v. Sawyer, 96 Me. 227; 52 Atl. 639; Hill v. Combs, 92 Mo. App. 242; Alpaugh v. Wood, 53 N. J. L. 638; 23 Atl. 261; Elliott v. Bell, 37 W. Va. 834; 17 S. E. 399.
2 Barnett v. Juday, 38 Ind. 86; Taylor v. Reger, 18 Ind. App. 466; 63 Am. St. Rep. 352; 48 N. E. 262; Albany, etc., Co. v. Bank. 17 Ind. App. 531; 60 Am. St. Rep. 178; 47 N. E. 227.
3 New Haven, etc., Ry. v. Hayden, 119 Mass. 361.
4 Eller v. Lacy, 137 Ind. 436; 36 N. E. 1088.
5 McKensey v. Edwards, 88 Ky. 272; 21 Am. St. Rep. 339; 3 L. R. A. 397; 10 S. W. 815.
6 Western Wheel Scraper Co. v. Locklin, 100 Mich. 339; 58 N. W. 1117.
7 Springfield v. Harris, 107 Mass. 532.
8 Trenton Potteries Co. v. Oliphant, 58 N. J. Eq. 507; 78 Am. St. Rep. 612; 46 L. R. A. 255; 43 Atl. 723.
9 Trenton Potteries Co. v. Oliphant, 58 N. J. Eq. 507; 78 Am. St. Rep. 612; 46 L. R. A. 255; 43 Atl. 723; affirming in part and reversing in part, 56 N. J. Eq. 680; 39 Atl. 923.