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.
If the promisors are severally liable, the promisee must sue each for his proportion of the indebtedness. He can not, in the absence of statute, join two or more several promisors in an action upon the contract if they object thereto.1
Under some statutes, however, persons severally liable upon the same contract may be joined as defendants.2 Under such a statute a joint action may be brought against delinquent subscribers who have incurred a separate liability.3 A statute which authorizes a joint action against persons severally liable upon the same contract, authorizes a joint action against a number of subscribers who are severally liable, each for a certain amount.4 A maker and an endorser are severally liable upon the same instrument within the meaning of a statutory provision which authorizes the plaintiff to join them as defendants.3 This rule applies both to parties who are severally liable for the entire performance and to those who are severally liable for performance of a part of the entire obligation. Under a statute which provides that a joint action may be brought against a maker and an endorser of a negotiable instrument, if such instrument is protested, such joint action may be brought if notice and protest have been waived by the endorser.6
14Hatzel v. Moore, 120 Fed. 1016.
15 Rocky Mountain Stud Farm Co. v. Lunt, 46 Utah 299, 161 Pac. 521.
16 Rocky Mountain Stud Farm Co. v. Lunt, 46 Utah 299, 151 Pac. 521.
17 J. I. Case Threshing Machine Co. v. Bridger, 133 La. 764, 63 So. 319.
18 Banking House v. Rose, 78 Neb. 693, 111 N. W. 590.
19 Lacy v. Kinnaston, Holt. 178, 1 Ld. Raym. 688, 4 Salk. 575, 12 Mod.
548; Harrison v. Close, 2 Johns. (N. Y.) 448, 3 Am. Dec. 444.
1 Price v. Ry., 18 Ind. 137; Perry v. Turner, 55 Mo. 418.
2 People v. Edwards, 9 Cal. 286; Hastings Industrial Co. v. Jones, 167 Ky. 714, 181 S. W. 364.
3 Hastings Industrial Co. v. Jones, 167 Ky. 714, 181 S. W. 364.
4 Hastings Industrial Co. v. Jones, 167 Ky. 714, 181 S. W. 364.
A release of one of two or more promisors who are liable severally, does not operate as a discharge of the other promisors,7 unless the principal is released and it is sought to enforce liability against a surety. If the liability is several, but the action is brought against both, a judgment against one is not a bar to the other.8
Since a joint obligation as the term is used in the Louisiana statutes is equivalent to a several liability as far as the liability of the promisors is concerned, a release of a party who is a joint obligor does not release the remaining obligors.9
The death of one of two or more promisors severally liable does not discharge his estate.10 A judgment against one who is severally liable on an instrument,11 such as a maker,12 is not a bar to an action against another party who is severally liable,13 such as an indorser,14 even if the indorser was originally joined in the original action but was dismissed without prejudice.15