
    Carrington v. Crocker.
    
    
      Severance of joint cause of action.
    
    A joint demand may be severed by the act of the debtor, binding himself to pay to the joint creditors their several proportions of the debt.
    Appeal from the general term of the Supreme Court, where a judgment rendered in favor of the plaintiff, in a case tried before the court, without a jury, had been affirmed.
    This was an action by Frederick T. Carrington and Myron Pardee against Lucius B. Crocker, upon an award of arbitrators.
    Carrington and Pardee were partners in trade, and the defendant became indebted to them in the course of their business, as they claimed; and differences having arisen, either as to the existence of the indebtedness, or its amount, the respective parties submitted themselves to an arbitration, the result of which was an award, on the 3d December 1852, in favor of Carrington & Pardee against Crocker, for the sum of $785.07. This action was brought to enforce the award.
    The defendant set up, as matter of defence: 1. The statute of limitations: 2. A release to him by Pardee of one-half the award, in consideration of $200: 3. That Pardee was improperly joined as a- party plaintiff.
    At the trial, the plaintiffs gave in evidence the awaid, which the defendant admitted to have been made on the 3d December 1852, and offered to show that a payment had been made on it, within six years. The defendant objected, on the ground, that.such proof was inadmissible under the complaint, it not having alleged a new promise within six years. This objection was overruled, the justice deciding that the complaint might be amended, according to *the facts. A receipt was then produced, indorsed upon a copy of the award, dated the 27th August 1858. This was the plaintiff’s case.
    The defendant' introduced a release dated the 8th April 1859, made by Pardee to the defendant, in consideration of $200, of his (Pardee’s) one-half of the award, and insisted on the objection of misjoinder of parties; but the court held that the objection might be remedied, by striking out the name of Pardee as plaintiff. On the conclusion of the trial, the court ordered judgment in favor of Carrington, as sole plaintiff, for one-half of the award, and interest from its date, with costs.
    Judgment was accordingly entered in favor of Carrington, and the same having been affirmed at general term, an appeal was taken to this court.
    Perry, for the appellant.
    
      Marsh and Webb, for the respondent.
    
      
       Also reported in 4 Abb. Pr. (N. S.) 335, and 4 Trans. App. 230.
    
   Fullerton, J.

(after stating the case.)—Although, as a general rule, a demand due to several persons jointly, cannot be subdivided, so as to allow the individual interests to be recovered, in separate actions, yet it may be done, with the debtor’s consent. The reason is, that the contract of the debtor is to pay the debt as an entirety to his joint creditors, and is, therefore, indivisible. The debtor, however, may, by a new contract, bind himself to account to the individual creditors for their respective interests in the demand, and such contracts are susceptible of being enforced. The object of this rule is, to protect the debtor from a multiplicity of actions, and the consequent increased expense; but, if he chooses to waive the protection which the law has provided him, no legal objection can be urged against it.

The first question in this case, then, is, whether Crocker consented to sever the joint interest of his creditors, and agreed to pay to each of them a moiety of the demand. The award was made on the 3d ^ec6m^er 1852, in favor of the plaintiff *and Myron Pardee, who, at the time, were copartners in trade. On the 27th of August 1858, the defendánt paid Pardee $200 on account of the award, and took the following receipt, indorsed on the award: “Received, Oswego, August 27th, 1858, two hundred dollars, in full for my one-half interest in the above award.” The terms of this receipt leave no doubt as to the intentions of the parties to split the demand, but they did not effectuate it, so as to make it binding on the owners of the claim. The payment, and the receipt given for it, did not operate as a satisfaction of one-half the claim, for the reason that there was no consideration moving between the parties which could affect the claim beyond the amount paid. It is a well-settled rule of law, though it is seldom applied, that the payment of a smaller sum cannot operate as a satisfaction of a larger. (Cumber v. Wane, 1 Smith’s Leading Cases, p. 146, and cases there cited.)

At the time this $200 was paid, the whole award and the interest thereon was due, and one-half the principal sum was far more than that amount. There having been no new consideration for the promise to satisfy any part of this demand beyond the amount paid, and there being no release under seal, it follows, that the whole award, with interest, less the $200 paid, was a valid demand against the defendant, in favor of both Carrington and Pardee. The receipt, therefore, did not split the demand, and the action was properly brought in their joint names, and could have been maintained, had it not been for the release of the 8th of April 1859. That instrument, under seal, and expressing a new consideration, consummated the agreement between Pardee and Crocker, which before that had remained inchoate, and as between the parties to it, effectually extinguished one-half the whole demand, leaving Carrington to prosecute his action for his half.

That this was the intention of the parties to the receipt and release, there can be no doubt. When. Crocker agreed to pay Pardee $200, as and for his one-half of the award, he doubtless meant that the other half should become the property of the plaintiff. The defendant himself took the same view of the transaction; for, in his original answer to the complaint, in which Carrington and Pardee were both plaintiffs, he claims as a defence that “Pardee was. improperly joined with Carrington, as a party plaintiff, because he had released Ms interest in the award.” The defendant appears to have deliberately agreed that the interests of his creditors should be separate, and he cannot complain, if he is held to his contract.

Even if this were not so, the defendant could not avail himself of the objection that there was a defect of parties plaintiff, in the amended complaint, after the name of 'Pardee had been stricken out. This defect, if any, appeared on the face of the complaint, and the only remedy in such a case is by demurrer; and the objection cannot be taken by answer. See De Puy v. Strong (post, p. 372).

^Neither can it be maintained, that the release of Pardee of his one-half of said award operated as a release of the whole. It was not so intended by the parties, neither is that its legal effect. The authorities cited to show that a release by one of several joint creditors of a debt or demand will bar an action by others, have no application whatever to this case.

I cannot agree with the learned judge who delivered the opinion in the court below, that the payment of the $200 did not take the case out of the statute of limitations. The reason given in support of that view of the matter is, that this action is for one-half of the demand, and upon that specific half nothing had been paid. That proposition is true, but it does not by any means follow, that the payment was not made on the demand as a whole. If the demand had been severed by a valid agreement, before the payment was made, then the payment would necessarily have applied solely to the extinguishment of • Pardee’s interest; but that was not the case. I have already shown, that the payment of the $200, when the receipt was given, extinguished the ^eman<^ onlyPTO * tanto, and not one-half of it, and that Carrington was entirely unaffected by that payment and receipt, except so far as the amount paid went to satisfy the joint demand as a whole. He had given no consent that Pardee’s interest should be severed, and without such consent, Pardee could not appropriate to his exclusive use the payment made, because Carrington could have compelled Pardee to account to him for one-half of the $200. Adopting this mode of reasoning, which seems 'to be sound, the payment made was on account of the whole demand, and not on a moiety of it, and, consequently, the statute of limitations had not run against it.

The fact that Carrington assented to what had been done, by amending his complaint, on the trial, and claiming to recover his half of the award, does not affect the application of this rule to the case. The assent then given does not relate back, so as to change the character or effect of the payment. It was still a payment on the demand, before the interests of the parties were severed, and affected the whole claim. The judgment should be affirmed, with costs.

Judgment affirmed.  