Jones v. Alder

SIMPSON, J.

This action is by the appellant for damages on account of injury to a horse, which, it is claimed, resulted from the failure of the defendant to place suitable floors in a stable which had been leased by the defendant “to plaintiff and another.” In other words, the action is brought by only one of the contracting parties, and the questions raised by the assignments of error relate only to the action of the court in sustaining demurrers to the several counts of the complaint. It will be noticed that each of the counts of the complaint rests upon the failure of the defendant to do what he had contracted to do, and not upon the omis *83 sion of any duty implied or growing ont of the relations between the parties. The counts are all on the contract, and not in case. — Wilkinson v. Moseley, 18 Ala. 288 ; Mobile Life Insurance Co. v. Randall, 74 Ala. 170 ; Baldwin v. K. C., M. & B. R. R. Co., 111 Ala. 515 , 20 South. 349 .

It matters- not whether the plaintiffs were partners or not. The contract set ont in the complaint was made with them jointly, and there is no intimation of a separate agreement of lease with each of them, or of any severable interest in either. The only right that both or either of them had to demand that the floors be put in was solely by virtue of the contract, and not on account of any duty otherwise owed. “Where a promise is made to two or more persons jointly all the obligees must unite as plaintiffs. This rule is not affected by the fact that some of such obligees have no real beneficial interest in the recovery.” — 15 Ency. Pl. & Pr., pp. 528-530; Boyd & Walk v. Martin & Bolling, 10 Ala. 700 ; Gayle et al. v. Martin et al., 3 Ala. 593, 598 ; Miller v. Garrett, 35 Ala. 96, 100 ; Masterson v. Phinizy, 56 Ala. 336, 339 . In the case last cited, this court, speaking-through Brickell, C. J., said: “The covenant or obligation is joint, or joint and several, or several, accorcling to the nature of the interest disclosed within its fou,r corners. The action must follow the nature of the interest. There is no right of election in the obligees, to sue upon it severally or jointly, because of the damages resulting from its breach.” Also that, to authorize a several suit, “it must be manifest that it was intended a separate and distinct duty should arise to each of them” ( 56 Ala. 339 ) ; and again, that “the averment that the appellee alone has sustained damage cannot change the character of the obligation, or the nature of the interest it creates,” etc. ( 56 Ala. 340 ).

*84 The decision in the case of Burton v. Henry, 90 Ala. 281, 286 , 7 South. 925 , 926, is based distinctly on the principle that the contract “shows upon its face distinct and several rights were intended to be secured,” and “very clearly indicated that these separate rights may be separately asserted,” and that “the interest of the promisees is not only not joint, but is, in the very nature of things, even, aside from the language of the instrument, adverse each to the other, and the proceedings provided for by the agreement, for the effectuation of whatever equities the parties respectively had.”- — 90 Ala. 286 , 7 South. 926 . In the case of Smith et al. v. Mutual Loan & Trust Company et al., 102 Ala. 282, 285, 286 , 14 South. 625 , 626, although the bond gave a right of action “to any person” damaged by the dissolution of the injunction, yet this court held that the suit should be brought in the name of the payees for the use of the person injured. To the same effect is the case of Painter et al. v. Munn et al., 117 Ala. 323 , 338, 23 South. 83 , 67 Am. St. Rep. 170 .

There was no error in sustaining the demurrer to the several counts of the complaint. The judgment of the court is affirmed.

Affirmed.

Dowdell, C. J., and Anderson, Sayre, and Somerville, JJ., concur. McClellan, J., dissents, on the ground that the counts are in case, under the rulings in White v. Levy, 91 Ala. 175 , 8 South. 563 , and Western Union Telegraph Co. v. Krichbaum, 132 Ala. 535 , 31 South. 607 . Mayfield, J., also thinks that the counts are in case, but concurs in the conclusion, because he thinks the parties would have to join in either event; the tort depending on the contract.