Suit against one of several joint Contractors-Joint Contract-Usages

Contract Act, IX of 1872, section 43.

A judgment, obtained against one or more of several joint contractors, operates as a bar to a new suit against any of the others. The fact that the joint contractors are trading partners does not affect the rule.

The effect of section 43 of the Indian Contract Act is to allow the promisee to sue one or more of several joint promisors in one suit, and to prohibit a defendant in such a suit from objecting that his co-contractors ought to have been sued with him.

King vs. Hoare, 13 M. and W., 494; Brinsmead vs. Harrison, L. R., 6 C. P., 584; 7 C. P., 547; Nuttoo Lall vs. Shunkur Lall, 10 B. L. R., 200, cited and approved.

APPEAL

PPEAL from a decree passed by Mr. Justice KENNEDY, in the Original Civil Jurisdiction of the High Court, dismissing the plaintiff's suit.

In this case it appeared that Rajendronarain, Debendronarain, and Gcurhurry Shaw were indebted to the plaintiff in the sum of one thousand rupees, to secure which they, on the 28th of November 1873, gave to the plaintiff the following promissory note:"On demand we promise to pay Baboo Roop Lall Mullick the sum of one thousand only, bearing interest at the rate of twelve per cent. per annum, value received in cash." Date and signature of Gourhurry Shaw, for himself and the other defendants, appended.

On the 2nd of September 1874, plaintiff instituted a suit against the three parties above named for the amount of the promissory note with interest; and, on the 31st of May 1875, it was ordered and decreed that the suit be withdrawn as against the defendants Rajendronarain and Debendronarain, with liberty to the plaintiff to bring a fresh suit against them for the same matter; and that

the defendant Gourhurry Shaw do pay to the plaintiff the amount of the note, with interest and costs.

The decree against Gourhurry Shaw remained unsatisfied, and plaintiff instituted the present suit against Rajendronarain and Debendronarain. The case having come on for hearing, the following judgment was delivered by

KENNEDY, J. :

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ROOP LALL
MULLICK

V.

RAJENDRO-
MOONSHEE

NARAIN

AND ANOTHER.

Statement.

1877

August 20.

I am asked to hold that the 43rd section of the Contract Act converts into a joint and several promise every joint contract, KENNEDY, J. because it makes, in the absence of special agreement, every joint contract enforceable against any one of two or more joint promisors. I cannot hold that. The Statute makes no further alteration than it professes. It leaves the law without the slightest change, except that it abolishes the plea in abatement for nonjoinder of defendants in the very few cases in which it was available in the later state of the law.

Before the Contract Act the promisee could compel one of the promisors to perform a joint and several promise, unless he was met by a plea in abatement; and when he was compelled to make them all parties yet, so soon as judgment was recovered, he could enforce it against any one of them; and we must remember that the question of pleading really had little if anything to do with the objection. The language of Baron PARKE, in King vs. Hoare, 13 M. and W., 505, puts the reason in a very clear light: "We do not think that the case of a joint contract can, in this respect, be distinguished from a joint tort. There is but one cause of action in each case. The party injured may sue all the joint tort-feasors or contractors, or he may sue one,—subject to the right of pleading in abatement in the one case, and not in the other; but, for the purpose of this decision, they stand on the same footing. Whether the action is brought against one or two, it is for the same cause of action. The distinction between the case of a joint and several contract is very clear. It is argued that each party to a joint contract is severally liable, and so he is in one sense, that if sued severally and he does not plead in abatement, he is liable to pay the entire debt; but he is not severally liable in the same sense as he is on a joint aud several

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bond, which instrument, though on one piece of parchment or ROOP LALL paper, in effect comprises the joint bond of all, and the several bonds of each of the obligors, and gives different remedies to the RAJENDRO obligee." And he proceeds in page 506, after a reference to the MOONSHEE effect of a plea in abatement: These considerations lead us, AND ANOTHER. quite satisfactorily to our own nfinds, to the conclusion that when KENNEDY, J. judgment has been obtained for a debt as well as for a tort, the right given by the record merges the inferior remedy by action for the same debt or tort against another party."

This decision was referred to and upheld in Brinsmead vs. Harrison, L. R., 7 C. P., 547, affirming the judgment of the Common Pleas at L. R., 6 C. P., 584. Indeed, that being the case of a tort is something stronger, as in that case a plea in abatement for nonjoinder of a defendant could never have been maintained. How does the question now stand affected by the Contract Act? I confess myself to be wholly unable to see that, except so far as the question of pleading, it has made any difference in the liabilities of the parties. There is a decision in 4 W. R., 50, Ramrutton Roy vs. Chunder Seckur, which might seem favourable to the plaintiff's contention. It is not very clearly reported, but it would seem that the bond there was executed only by one party (the person first sued), and that the subsequent suit was based only on a supposed equitable liability of the other defendant. However this may be, the decision was afterwards considered in a case before Sir RICHARD COUCH and Mr. Justice AINSLIE, reported in 10 B. L. R., 200-Nuttoo Lall vs. Shunkur Lall, in which the Court dissented from the case in 4 Weekly Reporter (which was a decision of the majority, TREVOR and E. JACKSON, J.J., against Justice STEER), and it was there laid down in express terms, in page 204, that "if there be a joint contract-not a joint and several, but a joint contract-and the party sues upou it and gets judgment, he cannot bring a fresh suit against the parties who were jointly liable, but were not included in the former suit." This is a direct decision of the Appellate Court, and the language of the Statute by no means contemplates successive suits. This very case shows the necessity of such a rule. A speculative attorney might bring three suits instead of one, and I am bound to put the construction on the language of the Statute

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which prevents such an abuse as this-a possibility of abuse on which KELLY, C.B., much relies in Brinsmead vs. Harrison, L. R., ROOP LALL 7 C. P., at 552. The plaintiff may select one, or he may sue all; but he cannot do both. He must make his election and abide by RAJENDROit. In this case, to use the words of Lord Justice TURNER in Er- MOONSHEE parte Huggins, 3 De G. and Jones, 38, the plaintiff "has made his deliberate election to pursue his remedy against one debtor, and KENNEDY, J. that having failed, he is now attempting to have recourse to the others;" and I must, therefore, dismiss this suit against the now defendants with costs.

The order withdrawing the suit against these defendants with liberty to sue again, made as it was behind the backs of these defendants, cannot in any way prejudice them.

Plaintiff appealed on the ground that the learned Judge was wrong in holding that the suit could not be maintained by reason of the previous judgment recovered by the plaintiff against Gourhurry Shaw; that judgment remaining unsatisfied, and leave having been given to bring this suit.

Hill, for the Appellant.

The decision in King vs. Hoare, 13 M. & W., 494, cannot, it is submitted, govern the present case, for two reasons, the first of which is founded on the nature of the obligation created by a joint contract, and the second on a consideration of the principles upon which the doctrine of merger rests. As regards the first of these reasons, it cannot be said that, by contracting jointly with others, the joint contractor excludes his several liability altogether. The joint contract is the contract of each joint contractor-Whelpdales' case, 5 Rep., 119; judgment may be recovered on it in a suit against one alone unless he plead in abatement, and upon judgment recovered against all, execution may be had against any one. There is only one debt due to the creditor, whether the contract by which it is secured be a joint or a joint and several one, and in either case the creditor may sue any one of his debtors for that debt, but with this difference that, while pleas in abatement existed, the joint contractor might demand as a right the joinder of his co-contractors with himself. That was the peculiar right for which

AND ANOTHER.

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MULLICK

he had contracted, and it could not be taken away from him withROOP LALL out his consent. This is the view taken by BAILEY, J., in Letchmere vs. Fletcher (1 C. & M., 623), where he says that, if judgment be RAJENDRO- recovered in an action against one joint contractor, the cnly reason MOONSHEE which prevents a second suit on the joint contract against another AND ANOTHER. of the joint contractors, is the latter's right to plead in abatement. Argument. The question whether or not a second suit can be brought is, ac

v.

NARAIN

cording to WILLES, J., one of procedure-Brinsmead vs. Harrison, L. R., 6 C. P., 584; and however this may be, it is submitted that the essential peculiarity of a joint contract was the reservation of a right relating to procedure. The joint contractor in effect says: "I admit my several liability, but stipulate that I shall have the right, at my option, to plead in abatement." Should any event supervene which prevents the exercise of this option, the several liability alone remains. Thus, if one of two joint contractors dies, the other remains liable for the whole debt, which is then treated as if it had originally been a separate debt-Richards vs. Heatten, 1 B. & A., 33. So when the Statute 3 & 4 Wm. IV., c., 42, s. 8, disallowed pleas in abatement where one of the joint contractors was out of the jurisdiction, the effect of the statute was to change joint contracts into joint and several contracts, whenever any of the joint contractors happened to be beyond the jurisdiction of the Courtper ALDERSON, B. in Henry vs. Goldney, 15 M. & W., 497; and so complete is the change that, in cases to which the Statute applies, the non-joinder of other co-contractors who are within the jurisdiction cannot be pleaded in abatement in a suit against oneJoll vs. Curzen, 4 C. B., 249. See further on this point the note by Mr. Cave in the 7th edition of Addison on Contracts, p. 289, in which he says that, since the passing of the Judicature Act, King vs. Hoare, is probably no longer law; this can only refer to the abolition of pleas in abatement by order 19, rule 13. Even before the Judicature Act, the pendency of an action against one joint contractor could not in England be pleaded in abatement of an action against the other-Henry vs. Goldney; and in this country by virtue of section 43 of the Contract Act, it is submitted that two distinct suits might be brought at one and the same time against two joint contractors. Then, does judgment recovered against one extinguish or alter the liability of the other? One of the grounds