Midland Terra Cotta Co. v. Illinois-Surety Co.

ViNje, J.

In the case of Concrete S. Co. v. Illinois S. Co., ante, p. 41, 157 N. W. 543 , it was held that the Illinois ■Surety Company was directly liable to a subcontractor under *192 tbe provisions of its bond set out in the statement of facts. The defendant Edward Schuster & Oo. Inc. is liable upon its express promise to pay, given as a consideration for plaintiff’s forbearance to perfect a mechanic’s lien. The defendant Utley is liable upon both causes of action set out in the complaint, for they are both based upon the same facts, namely, that he purchased and agreed to pay for the materials. We have, therefore, this situation: One defendant is liable on both causes of action, each of the other two defendants is liable upon a separate cause of action from the other, and is in no way related to or affected by the cause of action pleaded against its codefendant. The Edward Schuster & Oo. Inc. is not a party to nor affected by the provision in the bond that renders the Illinois Surely Company liable to the plaintiff, and the Illinois Surety Company in turn is not a party to nor affected by the promise of Edward Schuster & Oo. Inc. to pay plaintiff for the material if it would forbear to file a lien. Both these defendants are sued upon an independent promise individual to itself. The fact that it is for the same debt makes no difference. The statutory test is not whether the causes of action pleaded arise out of the same transaction, but whether they affect all the parties to the action. Plaintiff may have two recoveries, but it can have only one satisfaction.

Séc. 2647, Stats. 1913, as amended by ch. 219, Laws 1915, still requires that all causes of actions united in a complaint must affect all the parties to the action. This complaint violates that section, in that the cause of action set out against the Illinois Surety Company does not affect the Edward Schuster & Co. Inc. and in that the cause of action against the latter does not affect the former. The cases cited by plaintiff do not touch the precise question at issue. They relate generally to the subject of who are necessary or proper parties to an action. The requirement that the causes of action which may be united in a complaint must affect all the parties to the action is as imperative now as it has been ever since- *193 sec. 2647 was first enacted. Our court bas uniformly field tfiat causes of action founded upon different rigfits of recovery cannot properly be united unless all tfie parties to tfie action are affected by eacfi cause pleaded. Greene v. Nunnemacher, 36 Wis. 50 ; Hoffman v. Wheelock, 62 Wis. 434 , 22 N. W. 713, 716 ; Hughes v. Hunner, 91 Wis. 116 , 64 N. W. 887 ; Blakely v. Smock, 96 Wis. 611 , 71 N. W. 1052 ; Hawarden v. Youghiogheny & L. C. Co. 111 Wis. 545 , 87 N. W. 472 ; Tyre v. Krug, 159 Wis. 39 , 149 N. W. 718 .

By the Gourt. — Order affirmed.