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 A judgment against less than all of the joint promisors operates as a merger of the entire cause of action,2 although the defendants against whom such judgment was rendered might have taken advantage of the defect of party defendants if they had wished to do so.3 If an action is brought against two or more joint promisors, the promisee can not dismiss the action against some and have judgment against others.4 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.5 If a joint judgment upon conversion is reversed as to one and affirmed as to the other, such judgment operates as a bar to a subsequent action against both.6 If a judgment by default is taken against joint promisors and subsequently some of such joint promisors are given leave to answer and the judgment is set aside as to them, the courts should set it aside as to all such joint promisors, and it is error for the court to continue such judgment as to some joint promisors while setting it aside as to others.7 If the promisee makes the joint promisors defendants by summons and summons can not be served upon all, judgment against those upon whom summons can be served does not operate as a bar to the subsequent action against the joint promisors upon whom summons could not be served when the original action was brought.8 If, however, it is conceded by the pleadings that one of the joint promisors is a surety and if he interposes a defense of which the principal could not take advantage, such as an extension of time, it is not error to render judgment against the principal while a motion for a new trial to set aside a verdict in favor of the surety is pending.9 A defendant who has denied joint liability, but who has admitted a several liability for a certain amount, can not complain of a several judgment against him for the amount for which he admits liability.10 If an action is brought on the erroneous theory of 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.11 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.12 By statute in some states the promisee may sue less than all the promisors.13 Such statutes in effect make a joint contract joint and several.
8 Philadelphia, etc., Co. v. Butler, 181 Mass. 468, 63 N. E. 940; Weil v. Guerin, 42 G. S. 209; Burgoyne v. Trust Co.,
5 O. S. 586.
9 Weil v. Guerin, 42 O. 8. 299.
1 England. King v. Hoare, 2 Dowl.
& L. 382; Ex parte Higgins, 3 De G. & J. 33; Hammond v. Schofield , 1 Q. B. 463; Hoare v. Nihlett , 1 Q. B. 781.
United States. Mason v. Eldred, 73 U. S. (6 Wall.) 231, 18 L. ed. 783 [overruling, Sheehy v. Mandeville, 10 U. S. (6 Cranch) 253, 3 L. ed. 215]; Sessions v. Johnson, 95 U. S. 347, 24 L. ed. 596.
Contra, by statute in some states. Mason v. Eldred, 73 U. S. (6 Wall.) 231, IS L. ed. 783 (under Michigan statute).
Illinois. Fleming v. Ross, 225 111. 140, 80 N. E. 92.
Iowa. Citizens' Savings Bank v. Ole-son, 47 Ia. 492.
Kentucky. Burrua v. Anderson, - Ky. (3 Met.) 500.
Maryland. Thomas v. Mohler, 25 Md. 36.
Michigan. Beals v. Smith, 91 Mich. 146, 51 N. W. 885.
Missouri. Bagnell Timber Co. v. Missouri, K. & T. Ry. Co., 242 Mo. 11, 145 S. W. 469.
New Jersey. Coles v. McKenna, 80 N. J. L. 48, 76 Atl. 344.
Ohio. Sloo v. Lea, 18 Ohio 279.
Oklahoma. McMaster v. City National Bank, 23 Okla. 550, 138 Am. St. Rep. 831, 101 Pac. 1103.
In an early case it was held that a judgment against one joint trespasser was a bar against the other. Lendall v. Pinfold, 1 Leon. 19.
Oregon. Anderson v. Stayton State Bank, 82 Or. 357, 159 Pac. 1033.
Wisconsin. Lower v. Bandow, 48 Wis. 638, 4 N. W. 774.
2 Anderson v. Stayton State Bank, 82 Or. 357, 159 Pac. 1033.
3 Anderson v. Stayton State Bank, 82 Or. 357, 159 Pac. 1033.
4 Van Leyen v. Wreford, 81 Mich. 606, 45 N. W. 1116.
5 Kingsland v. Koeppe, 137 11l. 344, 13 L. R. A. 640, 28 N. E. 48; Sloo v. Lea, 18 Ohio 279.
6 Sloo v. Lea, 18 Ohio 270.
7 Aucker v. Adams, 23 O. R. 543. 8Yoho v. McGovern, 42 O. S. 11;
Stone v. Whittaker, 61 O. S. 194, 55 N. E. 614.
9 McCoy v. Jones, 61 O. S. 119, 55 N. E. 210.
lOHempy v. Ransom, 33 O. R. 312.
11 Oleason v. Milk Supply Co., 03 Me. 544, 74 Am. St. Rep. 370, 45 Atl. 825; Atkins v. Brown, 59 Me. 90.