
    Irad Kelley v. Joshua Maxwell.
    A party having demurred to the first count of the declaration, and pleaded the general issue to the other counts, and afterward, by leave of the court, having withdrawn the demurrer for amendment, and filed a second demurrer to the declaration generally, and no objection having been taken by adverse counsel to the irregularity, the court, on hearing, might properly regard the demurrer as a demurrer to the first count only.
    A clause in a chattel mortgage upon a steamboat, executed by K. & R. to M., reciting that M. had the same day sold the boat to K. & R., and taken fourteen promissory notes of $250 each, executed by K., payable at different days thereafter to M., and fourteen promissory notes of the same time and amount, executed by R., and that K. & R. had agreed to execute said mortgage for the security of said twenty-eight notes, and also to effect an insurance on said boat for the amount due M. for his further security upon said notes, and that said K. & R. promise to pay said sum of $7,000, as above, does not change the liabilities of K. & R.,.as expressed by said promissory notes.
    The object and effect of the mortgage were merely to secure the performance of the undertaking of K. & R., as expressed by said notes, without changing the terms of their undertaking.
    
      This is a petition in error to reverse the judgment of'the district court of Cuyahoga county.
    *The original proceeding was an action of debt, commenced by Maxwell, December 18, 1851, in the Superior Court of Cleveland, against Kelley, impleaded with Alfred W. Bossman (as to whom the sheriff returned “ not found ”), upon the covenants contained in a certain chattel mortgage, executed April 24, Í850, by Bossman and Kelley, to Maxwell, on the steamboat called “ The Great "Western,” of Buffalo.
    The declaration contains a special count upon the covenants, and also the common counts.
    Kelley filed a general demurrer to the first count of the declaration, and pleaded the general issue to the common counts.
    At the February term, 1852, Kelley obtained leave to withdraw his demurrer, and the cause was' continued.
    On the 16th of February, 1852, Kelley filed a demurrer, having craved oyer and set out the chattel mortgage; but the demurrer, by inadvertence, seems to have been to the declaration generally, instead of to the first count merely.
    The instrument of which oyer was craved is in the ordinary form of a chattel mortgage, containing a copy of the certificate of enrollment of the steamboat, and other descriptions unnecessary to be here given.
    11 Whereas, the said Joshua Maxwell has this day, by bill of sale cf this date, sold and conveyed to the said Alfred W. Bossman and Irad Kelley the above-named steamboat and property, and as a condition of the sale was that the said Bossman and Kelley should execute and deliver their mortgage as a security for the said sum of seven thousand dollars, being part of the purchase money for the same, and which said sum is to be paid as hereinafter particularly mentioned and set forth, according to the tenor of twenty-eight promissory notes hereinafter described; and should effect and assign to said Maxwell the policy of insurance hereinafter mentioned as a further security ; now the condition of these presents is "expressly this, that if the said Bossman and Kelley shall well and truly pay, or cause to be paid to the said Joshua Maxwell, the said sum of seven thousand dollars with interest thereon from the date hereof, according to the terms and conditions of twenty-eight promissory notes, each bearing date the 24th day of April, 1850, each in the sum of $250, and each payable with interest at the office of said Maxwell at Buffalo — fourteen of which said notes are made and signed by the said Alfred W. Bossman to the order of said Maxwell, and are due and payable as follows, to wit: one *note on the first day of June, 1850; one July, 1850; one August, 1850; one September, 1850; one October, 1850; one November, 1850; one May, 1851; one June, 1851; one July, 1851; ■one August, 1851; one September, 1851; one October, 1851; one November, 1851; one December, 1851; and the fourteen other of which notes are made and signed by the said Kelley, to the order •of the said Maxwell, and are due and payable the same as the above notes signed by the said Rossman above mentioned; and further shall effect, or cause to be effected, a policy or policies of insurance in some good and solvent insurance company or companies in the sum of seven thousand dollars, and shall keep and maintain said policies of insurance effectual to the amount at any time remaining due of the said purchase money as aforesaid, and shall assign the policy or policies to the said Maxwell, as a further security for the payment of said money, then this bill of sale to be void, and ■of no effect; and the said Rossman and Kelley covenant, promise, and ■agree to pay the said sum of seven thousand dollars as above, subject, however, to the following conditions: but if the default be made in the above conditions of these presents or any part thereof, the said Maxwell is hereby authorized to take possession of the said steamboat and property, at any time, and to sell the same or so much thereof as may be necessary to satisfy the above condition, and fully indemnify and pay the said Maxwell, and to pay all reasonable expenses, after giving thirty days’ public notice of such sale, in a public daily newspaper published in Buffalo city; and to retain the same out of the proceeds of such sale; the surplus, if any", to be retuimed to, and to belong to said Rossman and Kelley. And it is understood and agreed that the stipulations aforesaid are to apply to, and to bind the heirs, executors, and administrators of the respective parties. In virtue whereof the said Rossman and Kelley have hereunto set their hands and seals the 24th day of April, 1850.
    (Signed,) . “ Irad Kellet, [seal.]
    “ A. W. Rossman, [seal.]
    At the November term, 1852, of the Superior Court, the case was submitted to the court. ■ The following is the language of the record: “At this term came the parties to the suit, and being at issue, submit this cause to the court;” and.judgrnent was thereupon rendered in favor of Maxwell against Kelley for $2,941.39 and costs.
    From this judgment Kelley appealed to the district court. At the October term, 1855, of the district court, the following journal entry was made: “At this term, and on the 12th day of October, 1855, this cause having been submitted to the court, the court do find that Irad Kelley, the defendant served with process in this cause, and the said Alfred W. Rossman do jointly owe the plaintff in manner and form as is alleged in the plaintiff’s *declaration, the sum of $2,500, being the principal sum due on the promissory notes in said declaration mentioned; and that the plaintiff hath sustained damages by reason of the detention in the sum of $955.10,” and for which debt and damage, with costs, the court entered judgment against Kelley in favor of Maxwell. Kelley seeks to reverse this judgment.
    
      G. Stetson, for plaintiff in error :
    The district court erred in overruling Kelley’s demurrer, and rendering-judgment against him.
    The covenant declared on ought not to be construed as a joint covenant by Rossman and Kelley for the payment of the gross sum of seven thousand dollars, but as a covenant by each to pay his share.
    It is a familiar doctrine, and universal in its application, that a whole instrument is to be taken together in order to give construction to one or more of its parts. Marvin v. Stone, 2 Cow. 781; Quackenboss v. Lansing, 6 John. 49; Watchman v. Crook, 5 Gill & Johns. 239; Killiam v. Harshaw, 7 Ired. 497; Wadlington v. Hill, 10 L. & M. 560; Washburn v. Gould, 3 Story, 122; Gray v. Clarke, 11 Vt. 583; Kelly v. Mills, 8 Ham. 325; Patrick v. Grant, 3 Shep. 233.
    And among the points which the courts first consider is, what is the general object and purpose of the parties in making the instrument? Brown v. Slater, 16 Conn. 192; Worral’s Accounts, 5 Watts & Serg. 111; Washburn v. Gould, 3 Story, 122. They will also give such construction to the instrument as will make the whole operative. Randall v. Ches. & Del. Canal Co., 1 Harr. 154.
    When the language of the particular provision would imply a joint liability, yet if it be for acts to be done severally, it will be construed as several, unless it appears from the instrument that the parties bound intended to make themselves sureties for each other. Ludlow v. McCrea, 1 Wend. 222; Ernst v. Barth, 1 Johns. 319; Walker v. Webber, 3 Fairf. 65-67; Haskins v. Lombard, 4 Shep. 140.
    Applying these principles to the case under consideration, we *find that the instrument is a mortgage, not given for the purpose of creating any new obligation, or furnishing evidence of any existing indebtedness, but merely to secure the payment of indebtedness evidenced by other instruments.
    
      Foote & Newton, for defendant in error:
    I. There was no error in overruling the demurrer to the whole declaration, containing, as it did, the common counts, whether the first count, taken, as it must be, in connection with the deed set forth by the defendant on oyer, is itself sufficient or not.
    II. The covenant declared on is a joint agreement, and nothing else.
    1. It grew out of a joint transaction on the part of Kelley and Rossman with Maxwell.
    2. The language of the agreement is expressive of a joint undertaking and nothing else. 1 Chit. Pl. 47; Platt on Cov. 117.
    3. Unless the agreement be held joint it amounts to nothing. A construction which leads to that result will not be adopted.
    4. If A and B covenant with C to pay to him two debts, one of which is the debt of A and the other the debt of B, A and B are jointly liable to C for both debts, each as surety for the other as to the debt of the other. See Platt on Cov. 123.
    In all the decided cases in which an agreement by two or more persons has been held to be several and not joint, words are to be found in some part of the agreement, indicating a several and not a joint liability. In the case before the court no such words are to be found, and nothing but language appropriate to the expression of a joint obligation.
   Sutliff, J.

No question is shown by the record to have been made by counsel, upon trial in either court, upon the form of the pleadings.

The only question that seems to have been made by counsel, or considered by the court, was the legal effect of the instruments of writing on which the suit was predicated, whether Kelley and Rossman were to be regarded as only severally holden for the payment of the promissory notes by them respectively signed, or whether the covenants contained in the chattel mortgage jointly ^executed by them constituted a joint obligation upon them to pay all the notes on which they were before liable only severally.

It is provided, by section 4 of the act of March 12, 1845. “to. regulate the judicial courts and the practice thereof,” that:

“ In all eases pending in the court of common pleas, or in the Superior Court of Cincinnati, in which a demurrer is overruled, and the case proceeds to the jury, and verdict is rendered against the party that demurred, the opinion of said court on such demurrer may be examined and the final judgment reversed or affirmed by the Supreme Court on a writ of error.” 2 Curwen, 1140.

Regarding the demurrer as having been to the first count only of the declaration, the question presented to us would then be the same upon which the case turned in the district court, that of the legal effect of the instrument of writing.

It is, however, suggested by counsel for defendant in error, that, inasmuch as the demurrer is in fact to the whole declaration, it was necessarily bad, and rightfully overruled. „

If there had been no other reply to the common counts of the declaration, or if the demurrer was legally to be regarded as the reply to the common counts of the declaration, this position, although technical, would be a valid objection to this court considering the legal construction of the instrument of writing. But at the time of filing the last demurrer the common counts of the declaration had been answered by a plea of the general issue, and no leave had been asked or obtained by the demurrant to withdraw his plea; he had only asked and obtained leave to withdraw or perfect his demurrer to the first count.

What was, then, the effect of this irregular pleading — a demurrer not only to the unanswered count, but to the counts on which issue had been already closed by a plea in bar ?

It has been1 held that where the party first demurs to two counts of a declaration, and afterward, and without leave of court, pleads in bar to one of the counts, the dilatory plea — the demurrer— should be considered withdrawn as to the count to which the plea of the general issue had been so pleaded.

This holding is consistent with the rule that the pleading shall *be taken most strongly against the pleader ; that by pleading the general issue he had waived his dilatory plea, and in effect admitted the sufficiency of the count so pleaded to. We think an application of the same principle to this case would prevent the demurrer from applying to the common counts already at issue.' The demurrer would then be, so far as it professed to apply to the common counts, a nullity ; and might well have been regarded by the court, if counsel saw fit to waive the irregularity, as a demurrer only to the first and unanswered count of the declaration. This Court will therefore regard the demurrer, as it seems by consent of counsel to have been treated by-the district court, a demurrer merely to the first count of the declaration.

By virtue of the statute already alluded to, the demurrer, overruled by the district court, presents for our consideration the question : Did the district court err in holding the written instrument set forth on oyer by the demurrant a joint covenant on the part of Rossman and Kelley, to pay Maxwell the §7,000 expressed by the several twenty-eight promissory notes?

The covenants and provisions relied upon by counsel for defendant in error, to establish a joint liability, are all contained in that part of the chattel mortgage called the conditional clause of the instrument. That clause recites the transaction between the parties in substance as 'follows :

“ Whereas said Joshua Maxwell has this day, by bill of sale, sold ” said Rossman and Kelley said steamboat, etc.; and as a condition of the sale was, that said Rossman and Kelley should execute their mortgage as security for said §7,000, part of the purchase money, and which is to be paid “ as hereinafter particularly mentioned and set forth according to the tenor of twenty-eight promissory notes, hereinafter described,” and should effect and assign to said Maxwell the policy of insurance hereinafter mentioned as a further security.

“Now the condition of these presents is expressly this, that if the said Rossman and Kelley shall pay to said Maxwell said $7,000, with interest from date hereof, according to the terms and conditions of twenty-eight promissory notes, each bearing date the 24th day of April, 1850, each in the sum of $250,” etc.; *fourteen of which are made and signed by Rossman, and the other fourteen of like tenor, made and signed by Kelley, and shall effect and assign said policy of insurance, etc., and keep and maintain the insurance good for the amount due, then this bill of sale to be void and of no effect.”

“ And the said Rossman and Kelley covenant, promise, and agree to pay the said sum of $7,000 as above.” Subject, however, to the condition, that if default should be made in the stipulations, or any part thereof, Maxwell might take possession of and sell said boat, etc., to pay the amount so due and unpaid.

From this instrument, it appears: 1. That the execution of a bill of sale of tbe boat from Maxwell to the mortgagors, and their execution of their several promissory notes, fourteen in number, for $3,500, by each, of like tenor, and executed severally, and not jointly, and the mortgage for their security, were all agreed upon, and to be executed at one time; 2. The execution of all the writings were consummated at one time, and in accordance with the previous contract; 3. The parties in this conditional clause of the mortgage profess to recite their bargain, under which Maxwell made his bill of sale, and Rossman and Kelley were to make severally and respectively their promissory notes, and how the same were to be secured — to wit, by their mortgage of the boat, at the same date, and a policy of insurance to be thereafter effected by them, and assigned to Maxwell; 4. The writing, although minute and explicit in stating the agreement and understanding of the parties as to the security to be given by the vendees of the steamboat, makes no mention of any change in the terms of the agreement; but, on the contrary, represents the parties as intending by the writing to confirm and ratify the agreement as stated thereby.

In giving a judicial construction to this conditional clause of the chattel mortgage, we must have respect to all the provisions of the instrument, and, if practicable, give them fulL effect.

It appears certain, in the first place, that for the payment of the $7,0í¡0, Rossman and Kelley, for some reason, wished to undertake severally, and to that end executed severally two sets of notes, twenty-eight in all; each of the vendees executing fourteen of *the notes. The fourteen executed by Kelley were of the same date, the same amount, and payable at the same time with those executed by Rossman. Neither was surety for the other upon the notes. But each of the makers agreed to give a joint mortgage of the boat, and to keep the same insured for the benefit of Maxwell. And Maxwell agreed to accept the same as security for the ultimate payment of the notes. There can be no reasonable doubt that this was the original agreement. We here also see that the instrument makes no mention of any.change of this agreement, so that the parties should become jointly holden upon the notes.

But it may be said, the parties may have agreed to certain alterations in the terms of their bargain, and by the writing, in fact, have bound themselves to become jointly liable for the payment of the notes, without reciting in the writing the fact of their having so agreed to alter their, contract in that respect.

But if such agreement to change the terms of their contract were really made, why did not Rossman and Kelley execute their fourteen joint notes instead of their twenty-eight several notes? If it be said they probably had written and signed the twenty-eight notes before the change was agreed upon from several to joint liability for their ¡payment, it may be replied that, even granting all this, Rossman and Kelley, if they had really consented to become each other’s surety could very readily have respectively subscribed their names as surety to the promissory notes then present and before them. And we think it unreasonable to suppose that Maxwell would not have required them to do so, and that they would not have both subscribed the notes, if they had in fact agreed to become jointly liable for their payment. Indeed, to say nothing of this unusual position, it is doubtful whether the clause in the condition of the mortgage, relied upon by counsel for defendant in error to establish a joint liability and undertaking by Rossman and Kelley for the payment of the notes, even when taken by itself, by any means constitutes a joint undertaking. That clause reads as follows:

“And the said Rossman and Kelley covenant, promise, and agree, to pay the said sum of seven thousand dollars as above.” And *how they have promised and agreed “ above ?” Why, severally. They had respectively executed fourteen notes, and severally agreed to pay the same, as stated above in the same instrument.

We think that a fair and reasonable interpretation of the undertaking of the parties, deduced from the whole instrument, is, that the undertaking of Rossman and Kelley for the payment of their notes mentioned in the instrument, as understood by all the parties, was several, and not joint; and that the mortgage was neither intended nor understood by the parties as varying the contract already made ; but merely to insure its performance.

We therefore think that the district court erred in overruling the demurrer and holding the plaintiff in error jointly liable fox* the payment of the twenty-eight notes.

And for this cause the judgment of the district. court must be reversed.

Bartley, C. J., and Swan, Brinkerhopf, and Scott, JJ., concurred.  