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.
A judgment rendered against one joint promisor in an action in which the remaining joint promisors could have been made parties is a bar to a subsequent action against such other joint promisors.1 So if an action is brought' against two or more joint promisors, the promisee cannot dismiss the action against some and have judgment against others.2 If all the promisors are within the jurisdiction of the court and served with summons, it is error to render judgment against one as on default, and enter judgment on the merits in favor of the other joint promisors.3 If an action is brought on a joint contract, no recovery can be had against one promisor on his several contract in jurisdiction where the Common Law rule has not been modified by statute so as to permit of greater freedom of amendment.4 An action was brought against a county treasurer and his bondsmen on a joint bond covering his first term. The evidence showed a defalcation during his second term. It was held that as no judgment could be rendered against the bondsmen on such joint bond, no several judgment could be rendered against the treasurer.5 By statute in some states the promisee may sue less than all the promisors.6 Such statutes in effect make a joint contract joint and several.
4 Potts v. Dounce, 173 N. Y. 335; 66 N. E. 4; Eckert v. Myers, 45 O. S. 525; 15 N. E. 862; Taylor v. Taylor, 5 Humph. (Tenn.) 110; Chadwick v. Hopkins, 4 Wyom. 379; 62 Am. St. Rep. 38; 34 Pac. 899.
5 Philadelphia, etc., Co. v. Butler, 181 Mass. 468; 63 N. E. 949; Weil v. Guerin, 42 O. S. 299; Burgoyne v. Trust Co., 5 0. S. 586.
1 Sloo v. Lea, 18 Ohio 279. Contra by statute in some states. Mason v. Eldred, 6 Wall. (U. S.) 231 (Mich.).
2 Van Leyen v. Wreford, 81 Mich. 606; 45 N. W. 1116.
3 Kingsland v. Koeppe, 137 111. 344; 13 L. R. A. 649; 28 N. E. 48.
4 Gleason v. Milk Supply Co., 93 Me. 544; 74 Am. St. Rep. 370; 45 Atl. 825; Atkins v. Brown, 59 Me. 90.
5 King County v. Ferry. 5 Wash. 536; 34 Am. St. Rep. 880; 19 L. R. A. 500; 32 Pac. 538.
6 Miller v. Sullivan, 89 Tex. 480; 35 S. W. 362.