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 construction.1 In the absence of statute the liability of two or more promisors upon the same contract is a joint liability, if the rest of the contract does not show that a different liability was intended.2 Words which indicate the common assumption of an obligation strengthen this inference. Thus the use of such words as "we promise,"3 "we will undertake,"4 "the plaintiffs are to pay,"5 "the directors promise,"6 followed by the signatures of the promisors, imports a joint liability. A memorandum to the effect that a certain amount is due to A which is signed by B and C, is the joint obliga-tion of B and C.7 A contract by which two or more persons "jointly guaranty the payment" of a certain amount "pro rata" is held to be a joint contract.8
4 Ex parte Honey, L. R. 7 Ch. App. 178; People v. Harrison, 82 111. 84; Anderson v. Stayton State Bank, 82 Or. 357, 159 Pac. 1033; Municipal Court of Providence v. Whaley, 25 R. I. 289, 105 Am. St. Rep. 890, 63 L. R. A. 235, 55 Atl. 750.
5 See Sec. 2071.
6 See Sec. 2067.
7 Groves v. Sentell, 153 U. S. 465, 476, 38 L. ed. 785; Drew v. Bank, 125 La. 673, 51 So. 683.
See also, Nabors v. Producers Oil Co., 140 La. 985, L. R. A. 1917D, 1115, 74 So. 527.
1 Nabors v. Producers' Oil Co., 140 La. 985, L. R. A. 1917D, 1115, 74 So. 527; Payne v. Payne, 129 Wis. 450, 109 N. W. 105.
2 England. White v. Tyndall, 13 App. Cas. 263.
United States. Noyes v. Barnard, 63 Fed. 782, 11 C. C. A. 424.
Indiana. Eller v. Lacy, 137 Ind. 436, 36 N. E. 1088.
a several benefit to one or more of such parties, does not prevent the promise from being joint.9 The use of words which impose a joint liability creates such a liability in spite of the fact that the entire consideration is received by one of the parties,10 as in the case of principal and surety.11 A contract by which two sisters, A and B, together with their husbands, agree to support their mother, C, and which provided that she might live with whichever family she wished for as long a time as she chose, is a joint contract and it is not binding only upon the sister with whom the mother chose for the time being to reside. Accordingly, if C elects to live with A all her life, A may recover contribution from B.12 If, however, the defendant sets up the fact that he was surety and alleges extension of time as a separate defense, and the plaintiff concedes that such defendant was a surety, it is said that the contract is so far severable that;a several judgment is proper, since the liability is joint as toA but several as between B and C.13
Louisiana. Nabors v. Producers' Oil Co., 140 La. 985, L. R. A. 1917D, 1115, 74 So. 527.
Maine. Eveleth v. Sawyer, 96 Me. 227, 52 Atl. 639.
Missouri. Hill v. Combs, 92 Mo. App. 242.
New Jersey. Alpaugh v. Wood, 53 N. J. L. 638, 23 Atl. 261.
Hew York. Walter v. Rafalsky, 186 N. Y. 543, 79 N. E. 1118.
Nevada. Turley v. Thomas, 31 Nev. 181, 135 Am. St. Rep. 667, 101 Pac 568.
North Dakota. Clements v. Miller, 13 N. D. 176, 100 N. W. 239.
West Virginia. Elliott v. Bell, 37 W. Va. 834, 17 S. E. 399.
Wisconsin. Bacon v. Bicknell, 17 Wis. 523.
Contra, Schultz v. Howard, 63 Minn. 196, 56 Am. St. Rep. 470, 65 N. W. 363.
3 Albany, etc., Co. v. Bank, 17 Ind. App. 531, 60 Am. St. Rep. 178, 47 N.
E. 227; Barnett v. Juday, 38 Ind. 86; Taylor v. Reger, 18 Ind. App. 466, 63 Am. St. Rep. 352, 48 N. E. 262; McCoy v. Jones, 61 O. S. 119, 55 N. E. 219.
4 New Haven, etc., Ry. v. Hayden, 119 Mass. 361.
5 Eller v. Lacy, 137 Ind. 436, 36 N. E. 1088.
6 McKensey v. Edwards, 88 Ky. 272, 21 Am. St. Rep. 339, 3 L. R. A. 397, 10 S. W. 815.
7 Bacon v. Bicknell, 17 Wis. 523.
8 Wood v. Farmer, 200 Mass. 209, 86 N. E. 297.
9 Walter v. Rafalsky, 186 N. Y. 543, 79 N. E. 1118.
10 Black Mountain Ry. v. Ocean Accident & Guarantee Corp., 172 N. Car. 636, 90 S. E. 763; Schwitz v. Thomas, 38 S. D. 180, 160 N. W. 734.
11 Black Mountain Ry. v. Ocean Accident & Guarantee Corp., 172 N. Car. 636, 90 S. E. 763; Schwitz v. Thomas, 38 S. D. 180, 160 N. W. 734.
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 dis-tricts 14 or to "pay to the city the cost of the curbstone so placed opposite our land," signed by owners in severalty,15 is several. The use of words such as "we agree"16 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.17 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.18
By statute in some jurisdictions contracts joint in form are in effect turned into joint and several contracts.19 By statute it is provided in some jurisdictions that if the parties who unite in a promise receive some benefit from the consideration, their promise is presumed to be joint and several.20 By statute in Louisiana a note containing the words "we promise," is a several note, binding each maker only for his proportionate share.21
12Payne v. Payne, 129 Wis. 450, 109 N. W. 105.
13 McCoy v. Jones, 61 O. S. 119, 55 N. E. 219.
14 Western Wheel Scraper Co. v. Locklin, 100 Mich. 339, 58 N. W. 1117.
15 Springfield v. Harris, 107 Mass. 532.
16 Trenton Potteries Co. v. Oliphant, 58 N. J. Eq. 507, 78 Am. St. Rep. 612, 46 L. R. A. 255, 43 Atl. 723.
17 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].
18 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.)
19 United States. Sawin v. Kenney, 93 U. S. 289, 23 L. ed. 926.
California. Farmer's Exchange Bank v. Morse, 129 Cal. 239, 61 Pac. 1088; Gummer v. Mairs, 140 Cal. 535, 74 Pac 26.
Iowa. Cole v. Harvey, 142 la. 574, 120 N. W. 97.
Massachusetts. Coram v. Davis, 216 Mass. 448, 103 N. E. 1027.
Missouri. Bagnell Timber Co. v. Missouri. K. & T. R. Ry. Co., 242 Ma 11, 145 S. W. 409.