
    
      Baber v. Cook & Others.
    March, 1841,
    Richmond.
    (Absent Allen, J.)
    Bonds — Joint as to Some Obligors, Several as to Another — Judgment—Case at Bar. — In debt on bond for money payable twelve months after date against obligors, declaration counts against them as joint obligors; but it appears, by defendants’ ■pleas and plaintiff’s replications, as well as by evidence at the trial, that in fact the bond was first sealed and delivered by three of the obligors, of whom one was principal and the other two sureties; and that the fourth obligor sealed and delivered it some time after the debt fell due, with a view in so doing to substitute himself as surety in place of one of the original sureties; and this was done with the assent of the obligee of the principal obligor, and of the surety for whom the ' fourth obligor was to be substituted, but without the consent or knowledge of the other original surety: Held, the original obligation was the joint contract of the three obligors, but the obligation of the fourth obligor was his several contract, and therefore plaintiff cannot recover joint judgment against the four obligors.
    Same — Same— Remedy — Quiere. — Whether plaintiff has any. and if any, what remedy against the three original obligors .on the original obligation? ’ and any, and what, remedy on the several obligation of the last obligor?
    Pleading and Practice — Joint Contract — Judgment.— In an action against several defendants on a joint contract, plaintiff must be entitled to joint judgment against all, else he cannot have judgment against any.
    Debt, in the circuit (sttperior court of Pittsylvania, by Baber' against Cook, Treadway, Edwards and Hoofman, upon a bond dated the 17th December 1832, for 500 dollars payable twelve months after date ; on which the declaration counted as the joint obligation of the defendants.
    The defendant Cook, having been arrested and enlarged on special bail, was surrendered in court by the bail, and thereupon confessed judgment, and then took the benefit of the statute for relief of insolvent debtors.
    
      Edwards took oyer of the bond, and then pleaded in bar, that he was bound in the bond as surety for Cook who was the principal obligor, and that after the debt secured by the bond had become due and payable and Baber’s right of action had accrued on the bond, to wit, on the 10th March 1834, he required Baber by notice in writing' forthwith to put the bond in suit; and that Baber did not commence his action within a reasonable time after such notice to him delivered, according to the statute in such case made and provided, but delayed to bring suit for seven months &c. concluding with a verification.
    Baber replied, by way of confession and avoidance, that Edwards delivered him the written notice in the plea mentioned, requiring him forthwith to put the bond in suit, as he in his plea alleged, before Hoof-man had sealed and delivered the bond; and after the said notice was delivered, and before any unreasonable delay on Baber’s part had occurred which could exonerate Edwards from the obligation, Edwards, at the special instance and request of Cook, in order to prevent Baber from bringing his action forthwith, procured Hoofman to seal and deliver the bond, Hoofman undertaking to stand bound in Edwards’s place and to save him harmless from all responsibility on the bond ; and Hoofman accordingly sealed and delivered the bond; and Edwards thereupon and thereby waived his said notice and requisition therein contained ; and so Baber, with the knowledge, consent and approbation of Edwards, delayed to bring suit, as well and justly he might without exonerating Edwards ; concluding with a verification.
    Edwards, in his rejoinder, traversed the matters of avoidance alleged in the replication, and tendered an issue, which was joined.
    
      Treadway pleaded, that he also was bound in the bond as co-surety jointly with Edwards for Cook; and then setting forth the same matters alleged in Edwards’s plea, by reason whereof, and by force of the statute in such case made and provided, Edwards was released from the obligation, he said, he also was released. Baber’s replication alleged the same matters of avoidance which he had replied to Edwards’s plea. Treadway’s rejoinder traversed the replication, and an issue Was made up.
    Hoofman put in two pleas. The first was exactly like Treadway’s; Baber replied the same matters in avoidance; which Hoof-man’s rejoinder traversed, and an issue was made up. The second plea alleged, that Hoofman, on the-day of-• 1834, became joint surety with Edwards and Treadway for Cook for the debt in the bond set forth in the declaration mentioned, and he being so then and there bound, and the debt remaining due and unpaid, Edwards, before that time, gave written notice to Baber to put the bond in suit forthwith, and Baber did not within a reasonable time after such notice to him delivered commence his action on the bond, but delayed to do so for an unreasonable time, to wit, for seven months; whereby Edwards, and therefore Hoofman also his joint surety, were wholly released from the obligation ; concluding with a verification. To this plea Baber replied, that Edwards did not, after the sealing and delivery of the bond by Hoofman and after the debt therein mentioned became due and owing from Hoofman to Baber, and before the commencement of this suit, deliver to Baber any such notice and requisition in writing as in the plea set forth; concluding to the country. On which Hoofman joined issue.
    
      When Baber offered his replications to the pleas put in by Edwards and Treadway, and his second replication to Hoofman’s plea, the defendants respectively objected, that the replications were faulty, and -ought not to be received; but the court overruled the objection, and admitted the replications, whereupon the defendants rejoined, and made up the issues as before stated.
    Upon the trial of the issues, the jury found a verdict for the defendants Edwards, Treadway and Hoofman; Baber moved the court to set aside the verdict and direct a new trial; the court overruled the motion, and Baber filed a bill of exceptions setting forth all the facts proved at the trial.
    From this it appeared, that Baber produced the bond on which his action was founded, and which was in these words— “Twelve months after date, we promise and oblige ourselves, our heirs &c. to pay Alex. Baber the just and full sum of 550 dollars for value re-eived — witness our hands and seals this 17th December 1832” —and it was in fact signed and sealed bjr Cook, Treadway, Edwards and Hoofman. But it was proved, that the bond was first sealed and delivered by Cook, Treadway and Edwards; Treadway and Edwards executing it as sureties for Cook, who was the principal obligor. And it was further proved, that while the bond was in that state, Edwards, on the 10th March 1834, gave a written notice to Baber requiring him to put the bond in suit forthwith, otherwise he would not stand bound as Cook’s surety for the debt; and Baber promised Edwards that he would bring suit as required; but some five or six days after Edwards’s notice and requisition were delivered to Baber, Cook, in order to prevent an immediate action on the bond, by and with the consent and agreement of Edwards, but without the knowledge of Tread-way, procured Hoofman to seal and deliver the bond, which Hoofman did with Baber’s privity and consent. That the object of Cook, Edwards and Hoofman in so doing, was the release of Edwards from all liability as one of the obligors in the bond; and after Hoofman had so executed it, Cook and Hoofman, in Baber’s presence and hearing, told Edwards that he was released, and that Hoof-man stood bound to Baber in his place, and Edwards also said that he was released. There was no proof that Edwards’s notice and requisition to Baber to bring suit, were given with the knowledge of Treadway at the time, or that the fact of such notice and requisition being given was made known to him till after Hoofman' had executed the bond; and of Hoofman’s execution of it he was equally ' ignorant, and 'nowise'consenting to the transaction. It whs proved, that some six months after Cook had become insolvent; 'Edwards applied to Baber for a written'release from the obligation of the bond; which Baber said he was frilling to give him, but he was advised that it- should discharge the other obligors; declaring at' the time, and after-wards, that he did not wish that Edwards should be sued on the bond, if he coul'd be left out without destroying his 'action against the others.' That Edwards then asked Baber to deliver up to him the written notice he had given to'him on the 10th March 1834, which Baber accordingly did; and the notice was produced and proved at the trial. And that Hoofman paid Baber half of the debt; but being afterwards advised that he had been too hasty in making the payment', Baber" promised to refu'nd the money to him, in' case he should fail in his action'to recover the debt of Hoof-man. And these being all the facts proved at the trial, 'Baber’s' counsel moved the court''for a neW trial, on the ground that the verdict was contrary to the evidence; but the cburt overruled the 'motion,' arid gave judgment upon the verdict for the defendants.
    Baber applied to this court for a superse-deas to the' judgment'; which 'was allowed. ' ' ‘ .
    ^Grattan', for plaintiff in error.
    jR. C'. S'tariard, for defendants.
    
      
      Bonds — Obligor Added — Effect.—See principal case cited and approved in Nash. v. Fugate, 24 Gratt. 216, and foot-note. See monographic note on “Bonds” appended to Ward v. Churn, 18 Gratt. 801.
    
    
      
      Pleading and Practice — Joint Contract — Judgment.— For the proposition that, in an action against several defendants on a joint contract, the plaintiff must be entitled to a joint judgment against all, else he cannot have judgment against any, the principal case is cited in Steptoe v. Read, 19 Gratt. 9 (see note); Bush v. Campbell, 26 Gratt. 426; Hoffman v. Bircher, 22 W. Va. 542, 550; foot-note to Rohr v. Davis, 9 Leigh 30. See also, Peasley y. Boatwright, 2 Leigh 195; Jenkins v. Hurt, 2 Rand. 446; Code of 1887, sec. 3212.
      See monographic note on “Contracts” appended to Enders v. The Board of Public Works, 1 Gratt, 364, also, monographic note on “Judgments” appended to Smith v. Charlton. 7 Gratt. 425.
    
    
      
       The plea was founded on the statute, 1 Rev. Code, ch. 118, § 6, p. 461. — -Note in Original Edition.
    
    
      
      The plea of this defendant was founded on the principle laid down by this court in Wright's adm’r v. Stockton, 5 Leigh 153, that wherever some of several sureties are discharged by any act or omission of the obligee, the other sureties are also discharged. — -Note in Original Edition.
    
   TUCKER; R.

It is' with gréat regret that I feel'myself compelled to pronounce the opinion "'thát this judgment must, be affiiinéd. The procéss by Which I arrive at this conclusion, is simple, and avoids much of the argument,'arid some of the points made in the course of the discussion.

I proceed,' first', upon the well established principle, that, except in a few cases, the rule is general, that he who ' sues, upon a joint Contract, cannot recover a separate judgment against one of the' defendants. So firmly is this principle fixed, that even where one of two' joint defendants' confesses the action, no judgment can be 'entered against him till the issue made up by his codefendant is tried, and it i's wholly set aside if the issue be found for the code-fendant.. Jenkins v. Hurt’s com’rs, 2 Rand. 446; Taylor v. Beck, 3 Rand. 316. The recent statute of 1839 makes no other change in this principle, than to provide that, in 'a' joint' action, if the process'be executed a.s ' to some and' not ks to all, the plaintiff máy proceéd to judgment against those who have been arrested, and discon-' tinue ás to the others, or proceed against them Successively. '

The question then presents itself, whether a joint judgment can be' entered ' in this case, against al,l the defendants? And Í think it cannot; for’if the contract be not joint, a joint judgment cannot be rendered; and admitting that thé bond' was not avoided by ' Hoofman’s execution of it (which .seems very clear, since his name and seal.are only added, and the writing itself is wholly unaltered) and- admitting also, that Hoofman is tíoünd by his Signing and sealing (which seems also clear) yet to my mind it seems not less clear, that, as between Hoofman and the three other obligors the contract is not joint. All indeed are bound; but Hoofman is only severally' *bound, while the obligation as to the three others is joint as between themselvés, and several as it relates to Hoófman. I speak not of the ' contract as it appears upon its face, but of the contract 'or transaction as disclosed by the pleadings and the evidence. There can be no doubt, indeed, that the action upon the contract as it stands, was properly a joint action, and I do not perceive how any' other action could have been brought on it, for it contains no words of severalty. Nor could the defendant Hoofman have pleaded the special matter, so as to shew that the contract was not joint: he is estopped by his seal to deny it. The others might doubtless, have so pleaded, though they have- not done' so: But the plaintiff has been driven by the exigencies of his case to allege the matter himself. To avoid the effect of Edwards’s plea, he sets forth, in his replication, the fact that Hoofman was no original party to the bond, but that he executed it'some time after the day of payment was past. Could he then have been jointly bound with the others? I apprehend not. A joint obligation implies unity of time, of act, and extent of obligátiOn. Not, indeed, that all must sign and seal at the same time'; but the obligation on all must take effect at the same time to' make it joint. The execution by others afterwards may make it good as to them, arid not avoid it'as to the other's; but it doe's not therefore make it joint as to ' them all. When, therefore, a bond has been executed by three arid perfected by delivery', though the sealing and delivery by another afterwards, will bind him and not avoid the bond as to the others, yet the obligation is not joint but several, though he may by his deed be estopped to deny it. This will be more clear, when we consider, that if they are not jointly bound with him, he cannot be jointly bound with them. Now, they ‘are clearly' not jointly' bound with him. ■ Eor when they signed and sealed, he was not known in the transaction. They did not jointly with him oblige themselves *to pay. Treadway and Edwards bound themselves jointly with Cook to pay. If Cook failed, Treadway would have Edwards to bear one half the debt.' If Hoofman is to be intruded into tlje transaction without Treadway’s consent, he may be obliged to look to him for his 'contribution, before he 'can resort to Edwards for more than' a third. By what right could Baber, Cook, Edwards and Hoofman change Treadway’s rights and responsibilities under this contract? They had no right to judge for him, that the arrangement would be for his benefit. Every contracting party has the exclusive right of judging quoad hoc for ' himself. I hold, then, that the first three named obligors in this bond, are not jointly bound with the fourth, upon the transaction as it really occurred, the bond not having the unity of time and act essential to making it joint. Nor had it the same extent of obligation. When Hoofman signed and sealed, the debt was already due and payable by Cook, Edwards and Treadway. Did the bond bind him to pay at a day which was past? The plaintiff’s own replication shews, that he executed the bond after the date of it. It is then to be construed according to the true time of execution. Whether that would •give him twelve months after that time for payment, may perhaps be questionable, If not, then he was bound either to pay presently, or at a time past. The .latter is impossible; and the former is a different obligation from that of the others. It cannot therefore be a joint contract.

It is true, as already said, the effect of the estoppel might perhaps have prevented Hoofman from alleging the fact that the date of the bond was not the true date. But be this as it may, the plaintiff himself has alleged the true date. And this brings me to, observe, that upon the. pleadings in this case the plaintiff never could have had judgment. Had the jury found the issues in his favour, the judgment must have been arrested. For, in the first place, there is a fatal departure in pleading: *the declaration alleges a joint contract ; the replication, shews a separate one; the declaration alleges that the defendants on the 17th December 1832, sealed and delivered; the replication admits that Hoofman sealed and delivered sometime in March 1834; the declaration sets up one contract, the replication another; the declaration sets forth a contract to which Treadway was a. party, the replication one to which he was not privy. In the second place, the various matters in the replication shew, that the contract was not joint, and so there could not be a joint judgment. In the third place, the declaration alleges a breach by Hoofman in not paying in 1833, when according to the replication, he was at that time no party to the bond, and not bound to pay the debt. With all these fatal objections, a verdict for the plaintiff would have done him no good. Judgment must have been arrested, and entered for the defendant.

I think the judgment should be affirmed.

BROOKE, J.

I do not think it necessary to give any opinion as to the irregularity of the pleadings. That would be proper if there had been a demurrer; but the general verdict for the defendants cures all the errors in the pleadings, according to the uniform decisions of this court on the statute of jeofails. I think the only question before us is that which arises on the bill of exceptions to the opinion of the court refusing a new trial; and upon the facts therein as stated, I cannot doubt the correctness of that opinion. On this ground, I think the judgment ought to be affirmed.

CABELE, J., concurred in the opinion delivered by the president.

STANARD, J.

I am of opinion, that upon the case made either by the pleadings or by the evidence, this action, to sustain which it is necessary to shew a joint Responsibility of Cook, Treadway, Edwards and Hoofman, cannot be sustained; because the existence of such joint responsibility is negatived as well by the pleadings as by the evidence. If this be so, judgment must eventually have been rendered for the defendants, whatever had been the fate of the trial, of the issues before the, jury. In this aspect of the case, whatever might be the opinion of the court as to the conformity of the verdict of the jury upon the issues with the evidence, it would be supererogatory, to have a new trial of the issues so far as the fate of this action is concerned. But looking to the plaintiff’s ulterior remedies, either against the original obligors, or against Hoofman, my apprehension has been (though without coming to any.definite opinion as to what those remedies, if any, are, or may be) that judgment in this case, after the verdict on the issues, and the refusal of the court to set aside that verdict, might be a bar to any such remedy; and if such be the necessary consequence, thinking as I do •that the finding of the jury for the. defendants on the issues of fact, is not warranted by .the evidence, I should.be of opinion to set aside the verdict. But two of my brethren think, that a judgment of this court that this action, . being bn a joint responsibility, is for that cause not sustainable, and that our affirmance of the judgment on that ground will oppose no bar to the remedies, if any, which the plaintiff may have against the original obligors on their original obligation, or against, Hoofman, I acquiesce in that opinion, and concur in affirming the judgment.

Judgment affirmed.  