§ 52. Contracts may also be either joint or several, or joint and several.1
§ 53. The first rule governing a contract where there is more than one party on either side, is that it is to be construed as a joint right or obligation, unless it be made several by the terms of the contract; or as the rule is stated in Sheppard's Touchstone,2 "If two, three, or more bind themselves in an obligation, obligamur nos, and say no more, the obligation shall be taken to be joint only, and not several." This, however, is a rule of construction and not of law, and is adopted upon the presumption that parties only intend to assume a joint responsibility, unless they directly assume a several responsibility. If, therefore, there should be words indicating or implying a several right or liability, the contract will not be treated as joint solely, unless such a construction be required to carry out the intention of the parties, and to meet the justice of the case.3
§ 54. It has indeed been held in a series of cases that a contract is to be construed solely according to the interest of the parties, so as to be several if the interest be several, and joint where the interest is joint, notwithstanding the fact that the terms of the contract are joint.4 This doctrine has, howover, been strenuously denied, and has formed a topic of discussion and difference in several late cases in the Courts of Exchequer and of the Queen's Bench. The result of these cases is somewhat doubtful, but the better doctrine would seem to be, that a contract is to be construed, first, according to its express words, if they be clear and unambiguous, and not according to the interest of the parties where it conflicts with such terms; second, according to the interest, where the words are ambiguous and susceptible of different constructions. If, therefore, the contract be made expressly joint, and nothing be said indicating an intention to make it several, it is to be construed as solely joint. If, by its terms, it be both joint and several, it may be treated as either, according to the interest of the parties, in order to subserve the purposes of justice. If it be several in express terms, it must be so treated, though the interests be joint.1 A distinction is, however, to be taken in this respect between covenantors and covenantees, for although a covenant may by express words be made both joint and several as to covenantors, notwithstanding the severalty of the interests, it would not be so as to covenantees. If, therefore, a joint and several covenant be made by covenantors, they would be severally liable if the interests were several.2 But the same covenant cannot be both joint and several as to covenantees; and if the interest be joint, a joint action must be brought.3 Yet, if there be two different covenants in the same contract, one joint and several and the other several, the covenantee might bring a separate action against one, provided the subject-matter of the covenants were not the same; and
Stubbs v. Holywell Ry. Co., Law R. 2 Exch. 311 (1867); Kintrea v. Perston, 1H.&N. 357 (1856); Bland v. Ross, 14 Moore P. C. C. 210 (1860); Eddy v. Clement, 38 Vt, 486 (1866); ante, § 26.
1 See Jacobs v. Davis, 34 Md. 204 (1870).
2 1 Shep. Touchstone, 375. See also Bac. Abr. tit. Obligation, D.; King v. Hoare, 13 M. & W. 499; English v. Blundell, 8 C. & P. 332; Hill v. Tucker, 1 Taunt. 7; Yorks v. Peck, 14 Barb. 644; Byers v. Dobey, 1 H. Black. 236; 1 Saund. 2916, n. 4; Sorsbie v. Park, 12 M. & W. 156.
3 Withers v. Bircham, 3 B. &.-C. 254; Servante v. James, 10 ib. 410; Anderson v. Martindale, 1 East, 501. See Moss v. Wilson, 40 Cal. 159 (1870).
4 James v. Emery, 5 Price, 529; Servante v. James, 10 B. & C. 410; Lane v. Drinkwater, 1 C. M. & R. 599; Withers v. Bircham, 3 B. & C. 254; Shep. Touchstone, 166, and note by Mr. Preston; Eecleston v. Clip-sham, 1 Wms. Saund. 153; Carthrae v. Brown, 3 Leigh, 98; Ludlow v. McCrea, 1 Wend. 228; Trustees of Perryville v. Letcher, 1 Monroe, 11.
1 Mills v. Ladbroke, 7 Man. & Grang. 218; Place v. Delegal, 4 Bing. N. C. 426; Hall p. Leigh, 8 Cranch, 50; Poole v. Hill, 6 M. & W. 835; Seaton v. Booth, 4 Ad. & El. 528; Wilkinson v. Hall, 1 Bing. N. C. 713. See also Haddon v. Ayres, 1 El. & El. 118; Thompson v. Hakewell, 19 C. B. (n. s.) 713 (1865).
2 Bradburne v. Botfield, 14 M. & W. 559; Robinson v. Walker, 1 Salk. 893; Keightley v. Watson, 3 Exch. 716; 1 Wms. Saunders, 154, note 1; Enys v. Donnithome, 2 Burr. 1190.
3 Bradburne v. Botfield, 14 M. & W. 559; Hopkinson v. Lee, 6 Q. B. 971; Byrne v. Fitzhugh, 1 C. M. & R. 613; Hatsall v. Griffith, 4 Tyrw. 487; 2 Cr. & Mees. 679; Petrie v. Bury, 3 B. & C. 353; Southcote v. Hoare, 3 Taunt. 87; Slingsby's Case, 5 Co. 18 b; Anderson v. Martindale, not otherwise.1 But a composition deed by a debtor, with all his creditors, gives each creditor a right to a separate action.2
§ 55. Where the subject-matter of the contract is entire, as if it be to pay a whole sum to several parties, it is solely joint, and no one can bring a separate action for his share.3 Nor will the mere fact that the share of each is stated, give a separate right of action, if the intention be to pay only one sum in solido.4 Thus, where the defendant covenanted with the plaintiff and one A. B. to pay the plaintiff and the said A. B. one annuity or clear yearly sum of £30 " in the shares and proportions following," namely, the sum of £15, being one moiety of the said annuity or yearly sum, to the plaintiff, etc., and the sum of £15, the remaining moiety thereof, to the said A. B., "it was held that the covenantees had a joint and not a several interest;" 5 the sum being, throughout the deed, treated as one annuity, and not as two. So, also, where different sums of money are contributed by several persons, and the amount raised is advanced as one total sum, it has been held the action for repayment should be jointly brought.6