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.
Language which shows an intention on the part of each promisor to assume only a part of the entire liability imports a several contract.1 Thus such language as "we promise each to pay" a certain proportion of the debt, as a pro rata share of the purchase price,2 or of the expenses of litigation in which the same question is presented, involving the separate interests of the promisors,3 or "we promise to pay the amount set opposite our respective names," as in contracts for subscriptions,4 or "we, the undersigned, promise to pay the following subscriptions," with an amount opposite the name of each subscriber,5 imports a several contract. Hence one subscriber cannot use as a defense the fact that some of the other subscribers are minors or insolvent, since such fact does not increase his liability.6 The presumption in contracts of subscription is that a several liability is intentended.7 Hence a promise "to pay the above amount"8 has been held to import a several liability. However, if the language used shows a clear intent to incur a joint liability there is nothing in the nature of a contract of subscription that makes this impossible. Thus the words "we, the subscribers, agree to pay" a gross sum9 are held to impose a joint liability. A contract of subscription to carry out certain purposes whereby the subscribers undertake each to pay a certain sum is several as to such payments, but is joint as to the covenants to devote the fund thus raised to certain specified purposes.10 Hence a repudiation by a part only of the subscribers does not end the contract. The adversary party may perform and recover the several subscriptions from the subscribers.11 Hence, though no joint recovery can be had on the subscriptions, the subscribers should be joined as defendants in an action involving the common fund.12
10 Stanley v. R. R., 18 O. S. 552. (Hence construed so as to apply only to through trains running on both roads as a continuous line.)
11 Sawin v. Kenney, 93 U. S. 289 (Ark.) ; Gummer v. Mairs, 140 Cal. 535; 74 Pac. 26; Farmers' Exchange Bank v. Morse, 129 Cal. 239; 61 Pac. 1088; Jarnagin v. Stratton, 95 Tenn. 619; 30 L. R. A. 495; 32 S. W. 625. So where the payee signs as an apparent joint maker. Fisher v. Diehl, 94 Md. 112; 50 Atl. 432.
12 Groves v. Sentell, 153 U. S. 465.
1 Moss v. Wilson, 40 Cal. 159; Colt v. Learned, 118 Mass. 380.
2 McArthur v. Board. 119 Ia. 562; 93 N. W. 580; Fuselier v. Lacour,
3 La. Ann. 162; Larkin v. Butter-field, 29 Mich. 254.
3 Adriatic Fire Ins. Co. v. Tread-well, 108 U. S. 361.
4 O'Conner v. Hooper, 102 Cal. 528; 36 Pac. 939; Moss v. Wilson, 40 Cal: 159; Robertson v. March, 4 111. 198; Davis, etc., Co. v. Murray, 102 Mich. 217; 60 N. W. 437; Davis v. Creamery Co., 48 Neb. 471; 67 N. W. 436; Darnall v. Lyon (Tex. Civ. App.), 19 S. W. 506; Connecticut, etc., Ry. v. Bailey, 24 Vt. 465; 58 Am. Dec. 181; Hodges v. Nalty. 104 Wis. 464; 80 N. W. 726; Davis, etc., Co. v. Cupp, 89 Wis. 673; 62 N. W. 520.
5 Landwerlen v. Wheeler, 106 Ind.
523; 5 N. E. 888.