James Bartlett vs. Josiah Robbins & others, 5 Met. 184

Shaw, C. J. A nonsuit was entered in the present case, for the purpose of taking the opinion of the whole court upon two preliminary questions, the decision of either of which against the plaintiff would have been decisive of the case. This was an action of covenant, against three, and service on-two ; but it was contended that no sufficient service was made on Brown, and therefore that the suit could not be maintained against the other two. After the two had pleaded the general issue, they moved to dismiss the action for want of a sufficient service on Brown.

Brown is in form made a party to the suit, being included in the writ and declaration. If he was rightfully summoned, according to the statute, though out of the State, he must either appear and plead, or be defaulted ; and in the latter case, the suit would rightfully proceed against the other two. But if he was not rightly summoned, (of which we give no opinion,) we are of opinion that the defendants could take no advantage of it, except by plea in abatement. But it is too late to plead in abatement, after pleading the general issue.

And even if it were open for a motion to dismiss the action for want of legal service on one of the defendants — being a right for their benefit, which they might waive, and proceed to the merits — they must be deemed to have waived the exception to the service, by having pleaded. Simonds v. Parker, 1 Met. 508. The other question is, whether the contract by the three defendants with the plaintiff and his two deceased co-covenantors, Covington and Spooner, was a joint contract, or several. If the latter, a suit against the three, or either two of them, cannot be maintained. This contract is quite obscure.

To some extent, the different clauses are contradictory, and it is difficult to ascertain the intentions of the parties. Whether a contract is joint or several may depend upon the use of those terms, or upon the obvious nature of the undertaking. Eastman v. Wright, 6 Pick. 316. In the first place, this is a contract, in terms, inter partes, between Robbins, Jackson and Brown, on the one part, and Spooner, Covington and Bartlett, on the other part.

After certain recitals, it proceeds thus : “ And the said Robbins, Jackson and Brown do agree, in case, &c., then we will bear and pay to said Spooner, Covington and Bartlett one half the amount of their said contracts.” This would appear very clearly to constitute a joint stipulation, by the three composing the party of the second part, with the three composing the party of the first part.

The only doubt thrown upon it arises from the succeeding and closing provision, which is this : “ It is the mutual agreement of the parties hereunto, that the above contemplated advances shall be paid equally by the subscribing persons, (viz. the six,) and that all profits and losses arising from such advances shall be divided and borne equally by the subscribers.” On the whole, though it is difficult to reconcile the provisions of this short contract, we are of opinion, that this latter clause does not annul or control the plain and direct stipulation, by which the three defendants stipulated, in a certain event, which is alleged to have occurred, to pay a sum of money to the three covenantors, of whom the plaintiff is the survivor ; and therefore that the action may be maintained.

Nonsuit taken ojf.