Cowley v. Patch

The provision of the Gen. Sts. c. 97, § 28, that upon the death of one person indebted upon a joint contract, his estate shall be liable therefor as if the contract had been joint and several or as if the judgment had been against himself alone, relates only to the remedy, and, in an action upon such contract against the executor of a deceased party thereto, the plaintiff must still prove that the original liability was joint, and that both the survivor and the executor of the deceased are liable. In an action on the Gen. Sts. c. 97, § 28, against the executor of a person alleged to be jointly liable with F. upon two contracts, the declaration contained two counts, one upon each contract, and it appeared that in former actions upon the same contracts in which F. was a defendant, he had been adjudged not liable. As to the first count of the declaration it was admitted that the original liability, if any, was joint; and, as to the second, it appeared that the plaintiff in the former action treated the liability as joint, and no facts appeared tending to show that it was several. Held, that the executor was not liable on the contracts.

Contract against the executor of John W. Graves. The declaration contained two counts, the first of which was for money had and received to the plaintiff’s use by the said Graves. The second count was for professional services and disbursements. The answer alleged, among other things, that if the testate was ever indebted to the plaintiff, as alleged, he was jointly indebted with one Henry H. Fuller, now living, and that the plaintiff had elected to prosecute his suits, for the indebtedness and identical subject-matter in each count contained, against Fuller to final judgments, which judgments had been against the plaintiff, and in favor of Fuller. The case was submitted to the Superior Court upon an agreed statement of facts in substance as follows : Each count declares on a distinct and separate demand. The indebtedness in the second count, if any, (which the defendant does not admit,) was originally the joint indebtedness of the defendant’s testate, John W. Graves, and Henry H. Fuller. A suit was formerly brought by the plaintiff, for this identical demand against Graves and Fuller, in the lifetime of Graves. Upon the death of Graves during the pendency of the suit in court, the plaintiff discontinued against Graves, and prosecuted his suit to final judgment against Fuller alone as the survivor of the joint debtors. On trial by jury, verdict and judgment were in favor of Fuller, the defendant, who obtained judgment for costs, which have been paid on execution. A suit for the identical demand sought to be recovered in the first count was formerly brought by the plaintiff against John W. Graves in his lifetime. After suit brought and after the death of Graves, the plaintiff by order of court, on motion, summoned Henry H. Fuller into court as a joint debtor, contractor and defendant, with Graves, alleging that he was such in his motion to summon him in. Fuller was thus joined as a joint debtor and defendant with Graves. Graves dying pending the suit in court, the plaintiff discontinued as to Graves and prosecuted his suit to trial, verdict and judgment against Fuller alone as the surviving joint debtor. The ground of procedure against Fuller, through trial and up to final judgment was, that he was a joint contractor and debtor with Graves, and the trial was conducted on that ground. Verdict and judgment were in favor of the defendant, Fuller, who obtained a judgment for costs against the plaintiff, which has been paid on execution. Upon these facts Putnam., J., ruled that the action could not be maintained, and ordered judgment for the defendant. The plaintiff appealed.