§ 61. In contracts which are not reduced to writing, the court will look into the special circumstances of the case and the situation of the parties, as well as into the consideration itself, in order to determine whether the interest be joint or several, and how the action should be brought; and if the parties have, by their acts, manifested an intention to treat the contract as several and not as joint, it will be so held to be. Thus, if two joint owners of merchandise consign it to a merchant for sale, and inform him that each one owns one moiety, and give separate and different instructions, each for his own moiety, it will be treated as a several contract, and one of the consignors alone may maintain a separate action against the consignee for violation of his instructions.1 So, also, if the circumstances indicate distinct and separate interests, the contract will be treated as several. Thus, where the plaintiff and his two partners employed the defendants as accountants for hire to make out the accounts of the firm, and of the separate balance of each partner, and the defendants made out the plaintiff's separate balance so erroneously and negligently that, relying on their statements, he was a considerable loser thereby, it was held that the plaintiff might sue alone for this misfeasance.2 On the other hand, if the nature of the case manifestly indicate joint interests, no several right of action will be supported. Where, therefore, several persons jointly retain and employ one person to do a single act for the benefit of all, the contract will be joint, although they may have several beneficial interests, or be possessed of several shares in the subject-matter of the contract. Thus, where the plaintiff and two other persons owning separate shares in a ship, employed the defendant to sell the entirety for them, it was held that the plaintiff could not sue the defendant for his separate share of the purchase-money, for the engagement being to sell the entire ship, the proceeds all became joint property; but if each being a technical release.1 In England, however, no such distinction seems to have been taken, and the effect of a release is held to be the same whether it be by instrument under seal or not.2 A covenant not to sue one of several joint, or joint and several obligors, does not, however, discharge the other parties.8 But it should clearly appear by the terms of the
1 Townsend v. Hubbard, 4 Hill, 351; Van Alstyne v. Van Slyck, 10 Barb. 387; How v. How, 1 N. H. 49; Copeland v. Mercantile Ins. Co., 6 Pick. 198. In New Eng. M. Ins. Co. v. De Wolf, 8 Pick. 61, Parker, J., says, " The authorities cited to maintain the position, that the name of the principal must be signed by the agent, are of deeds only, instruments under seal; and it is not desirable that the rigid doctrine of the common law should be extended to mercantile transactions of this nature, which are usually managed with more attention to the substance than to the form of contracts."
2 Bell v. Chaplain, Hardres, 321; Jones v. Robinson, 1 Exeh. 454; Smith v. Hunt, 2 Chitt. 142; Winterstoke Hundred's Case, Dyer, pl. 59. 370 a; Hatsall v. Griffith, 4 Tyrw. 487; 2 Cr. & Mees. 679; Hall v. Leigh, 8 Cranch, 50; Lane v. Drinkwater, 5 Tyrw. 40; 1 C. M. & It. 599; Chanter v. Leese, 5 M. & W. 701.
3 Smith v. Hunt, 2 Chitt. 142; Story v. Richardson, 6 Bing. N. C. 123. 4 Ivans v. Draper, 1 Roll. Abr. 31, pl. 9; Styles, 156, 157, 203; Saund. 116, n. a.
1 Hall v. Leigh, 8 Cranch, 51.
2 Story v. Richardson, 6 Bing. N. C. 123. In his judgment in this case Mr. Justice .Maule says, " I am of opinion that no variance has been made out, for the case affords ample evidence of a separate retainer by the plaintiff. In a case of disputed partnership accounts, the firm agrees that the defendants shall be employed by the firm, and by each of them separately, to settle the accounts, and to make out the balance belonging to each. The duty of the defendants must be inferred from the nature of the thing to be done: there was a contract between the defendants and each of the partners, as well as a contract between the defendants and all. Whether, from such owner had employed the defendant to sell his particular share, separate actions might be brought by each.1
§ 62. Where a contract is joint and several, the plaintiff must sue each party severally, or make joinder of them all, and he could not maintain an action against two of three parties under such a contract.2 If a creditor sue one of several joint debtors, and the defendant prevail, this is no defence to another action against the other joint debtors, unless the judgment was rendered on some ground which would avail them all; and they must allege and prove that fact.8
§ 63. Where a release under seal is given to one of joint, or joint and several debtors, it operates as a discharge of all.4 Nor would the effect of such a release be altered by parol evidence, that it was given to one obligor at the express request of the other, who thereupon agreed that he should still remain liable,- on account of the technical rule of law that an instrument under seal cannot be varied by parol averment.5 But where the release is not under seal, it seems to be well settled in America that it would not discharge all the obligors, it not a contract, a duty arises which may be the subject of an action ex delicto,is a question which arises on the record, but does not call for decision now."
1 Hatsall v. Griffith, 2 Cr. & Mees. 679. See also Hill v. Tucker, 1 Taunt. 7.
2 De Ridder v. Schermerhorn, 10 Barb. 640; 1 Chitt. Plead. 30; Streat-field v. Halliday, 3 T. R. 782.
3 Phillips v. Ward, 2 H. & C. 717 (1863).
4 Cocks v. Nash, 9 Bing. 348; Brooks v. Stuart, 9 Ad. & El. 854; Clayton v. Kynaston, 2 Salk. 574; 2 Roll. Abr. 412 (G.) pl. 4, 5; Ham-mon v. Roll, March, 202; Lunt v. Stevens, 24 Me. 534; Walker v. Mc-Culloch, 4 Greenl. 421; Rowley v. Stoddard, 7 Johns. 210; Shaw v. Pratt, 22 Pick. 308; De Zeng v. Bailey, 9 Wend. 336; Harrison v. Close, 2 Johns. 449; Nicholson v. Revill, 4 Ad. & El. 683; Cheetham v. Ward, 1 Bos. & Pul. 633; Parker v. Lawrence, Hob. 70.