
    Frederic W. Myrick & others vs. Charles C. Dame & others.
    A release by two of three joint obligees is a bar to a suit by the third, brought in the name of the three, for one third of the benefit of the contract. In such joint action the plaintiffs cannot set up that such release was a fraud on one of their number, and thus deprive the defendant of a legal defence to the claim of the three.
    No action at law can be maintained on a joint agreement by the plaintiffs and defendants, who were all members of the same joint stock company, formed to purchase a vessel of the plaintiffs.
    Parol evidence that a contract, signed by the plaintiffs jointly with the defendants, and apparently a joint undertaking by all the signers, was in fact signed by tho plaintiffs as one party, and by the defendants as a second party, is inadmissible as tending to contradict or control a written instrument.
    This was an action of assumpsit, containing the common money counts, tried before Bigelow, J., in the court of common pleas, whence it came to this court by a bill of exceptions. It was brought by Frederic W. Myrick, John P. Farrar, and Joshua Leavitt, against Charles C. Dame and a great number of others, upon only three of whom the writ was served.
    The plaintiffs filed therein a special count, alleging that the “defendants, on the 24th day of February, in consideration that the plaintiffs had contracted for and were owners of a certain barque chlled The Helen Augusta, which they were fitting for a voyage to California, which they agreed to sell to the said defendants and relinquish their interest therein, promised and agreed, by a writing here in court to be produced, to form a joint stock company, not to exceed seventy- five members, for the purpose of proceeding to California in said barque, and when said company was full, to purchase, in equal shares, of the said plaintiffs the said barque and authorize them to fit her for sea as originally intended, and to pay the said plaintiffs, in addition to all bills and expenses that they had or might subject themselves to for said vessel, previous to her sailing, the sum of fifteen hundred dollars.” It also averred “ that the company was full; that the defendants have purchased said vessel and fitted her for sea; and that they, the plaintiffs, have been at expense, in time and in cash payments for said vessel, in the sum of three hundred dollars; that they have demanded of said defendants said sums of $300 and $1,500; yet the said defendants, not regarding their said promise, neglect and refuse to pay the same.”
    Under this count the plaintiffs filed a specification of Far-rar’s claim for his services and expenses in going to sundry places between the 1st and 20th of February, 1848, amounting to $369.14, to which was added “ one third interest in the contract for The Helen Augusta, aside from the above expense, 500 dollars.” To this specification was appended the following memorandum, signed by the plaintiffs’ attorney : “ The above embraces said John P. Farrar’s one third interest in the entire contract declared on, and this suit is prosecuted to recover the same, if it should appear that the other parties have been satisfied for their interest in the same, or otherwise disclaim.”
    In order to prove their case, the plaintiffs introduced in evidence a contract, dated February 1, 1849, signed and sealed by Joseph Coffin and Frederick W. Myrick, in which Joseph Coffin, ship-builder, and owner of a new vessel now lying on the stocks, agreed to launch her as speedily as possible, and deliver her afloat, “ in good order and condition complete, together with her spars and customary finish.”
    And F. W. Myrick and Co., therein agreed “to pay the said Coffin for fulfilling his contract the sum of $9,200, nine thousand two hundred dollars, one half to be paid before the vessel sails on her voyage, and the remainder in satisfactory notes oi paper on three and six months with interest.”
    
      The plaintiffs also introduced in evidence a contract dated February 24, 1849, signed by the plaintiffs and the first named defendant and others, agreeing “to form a joint stock company, not to exceed seventy-five members, for the purpose of proceeding to California in the new barque Helen Augusta. And when the company shall be full, to purchase, in equal shares, of the present owners, the new barque Helen Augusta, and authorize them to fit her ready for sea as originally intended ; and to pay the said in addition to all bills and expenses that they have subjected themselves to for said vessel, previous to her sailing, the sum of fifteen hundred dollars.”
    The plaintiffs then offered the following testimony: —
    Joseph H. Adams, president of an insurance company, testified that the three plaintiffs procured insurance on the barque Helen Augusta, at his office, on the ninth of March, 1849, the policy to take effect March 14th; that the barque was at Newburyport at the time of the insurance,, and that she was insured by the plaintiffs on their own account, and not for whom it might concern ; that this policy was cancelled the 20th of April following, and a new policy was taken out on the barque, in favor of other persons.
    Joseph Coffin testified that he agreed to sell the barque Helen Augusta to the plaintiffs, in January, 1849, according to the contract first above set forth, and that all the plaintiffs were present when the bargain was made ; that the plaintiffs could not get the money to fulfil their contract, and that other persons took the bargain in their stead; that before he conveyed it to the others, captain Myrick, one of the plaintiffs, had paid him $3,300, and that the two other plaintiffs never paid him anything towards the price of the barque.
    Josiah C. Proctor testified that, early in February, 1849, the plaintiffs employed him to act as agent of a barque which they had bought of Mr. Coffin, to fit her for sea, get .provisions, &c., under a written contract, the terms of which are not material in this case.
    That he saw the second contract above set forth, and saw the present plaintiffs and several of the defendants sign it. The witness testified to the signatures of several of the defendants who did not sign in his presence; he further testified that the paper was left in his office for signatures; that, when the vessel sailed, which was on the tenth of May, all the persons whose names are signed as members of the company, went in her, including two of the plaintiffs, Myrick and Leavitt, except the other plaintiff, John P. Farrar, and one Merritt; that the joint stock company kept records, which they took with them; that there was a vote on their records declaring the company full, and that the defendants, including those on whom the writ was served, declared it to be full. The witness also testified that said John P. Farrar rendered many services in getting up the company, by procuring members and endeavoring to raise money, and in other ways; and that, for about six weeks, he devoted himself to attending to the concerns of the company; that Williams, one of the defendants, stated that the company would not have been raised if it had not been for Farrar’s aid, to which Dame, another of the defendants, replied that Farrar had done a good deal up to a certain time, and was sorry he had not continued to do so; that Farrar received from him, as agent of the company, money from time to time, not exceeding in all $30, which was paid to him by order of Myrick; that he saw on the records of the company a vote by which a share in the company was presented to Myrick, and that Myrick went out as captain of the vessel. He also testified that he received no money from Farrar on account of the company, on his own account, but that Farrar brought to him, on one occasion, $200, which he had received from another member of the company, and paid over to the witness on behalf and on account of such other member; that Myrick did pay him over money, and that, after the company was formed, a committee was raised, of which Farrar was a member, to procure money for the company.
    The plaintiffs here rested their case.
    The defendants then contended that the evidence showed that the plaintiffs and defendants were all members of the same joint stock company, and that no action could be maintained by the plaintiffs against the defendants, on account of the doings, transactions and services rendered in and about the affairs of the company, upon the foregoing evidence. They also introduced in evidence (having duly specified the defence) a release signed and sealed by two of the plaintiffs, Myriek and Leavitt, to the three defendants on whom the writ was served and two others, in which they “released, discharged, and acquitted the said Dame, and others, of and from all debts, dues, demands and claims which we or either of us have jointly or severally, or jointly with one John P. Farrar of said Boston, against the said Dame and others, or against either of them, or against them jointly with any other person or persons, or which we may or might have against them ox any of them, by reason of any thing done or agreed to be done, from the beginning of the world to the present day” This release was dated April 27, A. D. 1849.
    The plaintiffs, on this evidence, claimed the right to go to the jury to recover the amount alleged to be due to Farrar, one of the plaintiffs, alleging his right to use the names of the other two plaintiffs who had released, for that purpose. They also contended that the release, on the foregoing evidence, should be set aside for fraud. The plaintiffs offered no evidence in reply.
    But the judge being of the opinion that the plaintiffs, on the foregoing evidence, could not, in point of law, maintain their action, did not permit the case to be argued to the jury on the evidence, but directed the jury to return their verdict for the defendants, which they did accordingly, and the plaintiffs thereupon excepted.
    
      F. W. Sawyer, for the plaintiffs.
    
      G. H. Preston, for the defendants.
   Shaw, C. J.

The action is assumpsit, originally brought on the money counts only, but afterwards a special count was filed, and a specification of the plaintiff’s claim under the rule of court.

The instrument stated in the declaration and offered and relied on in evidence is dated February 24, 1849.

It purports to be an agreement of the subscribers to form a joint stock company, &c.

To purchase in equal shares of the present owners of the barque; authorize them to fit her, &c.; and pay the said-, probably owners, in addition to expenses, &e., $1,500.

This was signed by the three plaintiffs, the four or five defendants, and a large number of others.

It is a promise by all the subscribers; it is not a promise to the plaintiffs nominatim, but the plaintiffs insist that it is a promise to them by implication, because they were the owners.

The plaintiffs then offered evidence to prove that they were the owners. Coffin, the builder, testified that the three plaintiffs did contract for her, though the contract was in the name of Myrick & Co., but that they could not pay for her, and in consequence of this he conveyed her to other persons.

This promise was dated 24th February, 1849. The defendants offered a release executed 27th April, 1849, from Myrick and Leavitt, two of the plaintiffs, to the three defendants and some others, of all claims and demands due them personally or to them or either of them jointly with Farrar, the third plaintiff.

The court, on the evidence, instructed the jury that the action could not be maintained, to which the plaintiffs excepted.

We think this direction is right on several grounds.

1. The first is, that the promise not being made to the plaintiffs by name, but the promise being only to pay the owners, the plaintiffs could not show themselves the promisees, by the words of description, without proving their ownership, and their capacity to convey; and this proof failed. The evidence is that they contracted with the builder, to purchase her, but they did not comply with that contract, and he,' in fact, conveyed her to other persons. This is not controlled by the fact of their getting her insured.

This, however, does not appear to be the ground of excep tion taken at the trial, but there are two others depending merely upon matters of law, which are decisive.

2. That the plaintiffs and the defendants were jointly concerned in.getting up the stock company, that the plaintiffs were members, and if there was any promise to the plaintiffs, it was a promise made by themselves, equally with the others, and being equally promisees and promisors, they cannot sue themselves, and their only remedy would be in equity, for an account as between partners.

3. This is a joint action; a release, by two of the plaintiffs, is a bar. It is an extinguishment of the debt, due by the contract, if any ever existed. Tuckerman v. Newhall, 17 Mass. 581, 590.

To avoid the effect of this release, it was stated by the counsel in his opening, that the action was brought in fact by Farrar only, in the name of the three, to recover his third part of the benefit of the contract specified, to wit, his own several charges and expenses, together with $500, one third part of the $1,500 promised by the contract. But it is very manifest that if a contract at all, this was an open, entire, and executory contract, never severed, and the plaintiff has so treated it, by bringing an action in the name of the three plaintiffs jointly.

The plaintiff argued that he had a right to give evidence aliunde, that, though the written paper appears to be a joint undertaking of all the signers, in fact, the first three were parties of the first part, contracting with the others as parties of the second part; and the case of Carpenter v. King, 9 Met. 511, was cited.

That case held only, that when two persons had signed a. written contract and obligation to a third, it might be shown by evidence alvmde, for the purpose of adjusting the relative rights and duties between the two obligors, that one was principal and the other surety. But that is not an authority for this point.

The admission of such evidence would be contrary to the plain rule, that parol evidence is not admissible to control or contradict written evidence.

It was also insisted that it should have been left to the jury, on the evidence to find, that the release given by two of the plaintiffs was a fraud on the third, and therefore could not avail the defendants. It was an offer by the three plaintiffs to prove that two of them committed a fraud on the third, in order to defeat the defendants of a legal defence, which they were making against a claim of the three. It was sufficient to state such a proposition to show it inadmissible.

If the plaintiff relied on a separate cause of action, he should have sued alone; but it is manifest that the evidence here offered would not sustain such action.

The plaintiff contended that this release could not avail the defendants, because. it did not purport to be the act and release of the three. True, it was not the act of three, but it was the act and release of the two ; and a release by either was a good defence to a joint action.

The authority cited by the plaintiffs is in point to show that a release by one is a good bar to a joint action. Pierson v. Hooker, 3 Johns. 68.

It was further insisted that there was no consideration for the release. Being under seal none was necessary.

Exceptions overruled and judgment on the verdict.  