The plaintiff sued five persons as common carriers in an action founded upon their contract to transport certain property from Buffalo to Milwaukie. He might have framed his action in tort and held them liable upon their common law liability and duty. But his complaint alleges an express understanding on their part, to transfer and deliver the property in question, and its breach by their failure to do so, and asks for damages for their non-performance of the contract. The plaintiff's action is therefore subject to the *Page 174 rules which govern actions upon contracts, and if his recovery is obnoxious to any objections founded on these rules, he must fail, notwithstanding that the alleged breach of contract was also a wrong, and that he might have avoided any such difficulties by suing in tort.
The complaint alleges a joint liability of all the defendants, and such is the nature of the engagement alleged to have been made. That it was a joint and not a several agreement of all the parties who made it with the plaintiff, whoever these parties were, and these parties were jointly responsible to the plaintiff with whom they contracted. Ensign and Holt, two of the defendants, appeared and answered, putting in a simple general denial of the complaint. The other three defendants were non-residents. They do not seem to have been served with process, or to have been otherwise brought in, and they did not appear or answer. At the trial, the delivery of the goods on board the propeller Cuyahoga at Buffalo to be carried to Milwaukie, was proved, and it was shown that they were not delivered according to the agreement by which they were received on the vessel. It was admitted that Ensign and Holt were part owners of the vessel. The contract was made with the plaintiff by an agent of the vessel, and there was sufficient evidence that this person was authorized to make the contract which he did, and to bind the owners of the vessel thereby. It was thus the contract of Ensign and Holt. But it was proved that there were other owners of the vessel who were of course also bound by the same agreement upon which Ensign and Holt were liable.
The misjoinder of parties who are not jointly liable in an action on a joint contract would have been fatal to the plaintiff, before the code. Upon the facts which appeared at the trial the plaintiff would have been nonsuited, although the three defendants who were misjoined had not appeared, and even if they had been served with process and had suffered default. (19 John. 109; 1 Chit. Pl. 32; Bull. N.P. 129.) But the code (§§ 136, 274) has abrogated this strict and *Page 175 technical rule. The 136th section is to the effect, that "where the action is against two or more defendants, if all of them have been served, judgment may be taken against any or either of themseverally where the plaintiff would be entitled to judgment against such defendant or defendants, if the action had been against them or any of them alone." By the 274th section, in an action against several defendants, the court is authorized in its discretion to "render judgment against one or more of them, leaving the action to proceed against the others, whenever a several judgment may be proper. In Harrington v. Higham, (10 Barb. 524,) the Supreme Court held that where, in an action alleging a joint liability against three defendants, it appeared that two of them were served and the third was not, the two who were liable could not take advantage of the non-liability of the third. In Parker v. Jackson, (16 Barb. 33,) an action was brought against two members of a firm upon a promissory note signed with the firm name. It appeared that one partner had used the firm name without authority, and therefore the other partner was not liable. Upon this provision of the code, however, the court held that the plaintiff might have sued the partner who signed the note alone, and therefore he could have judgment against him, while the other defendant was discharged. InBrumskill v. James, in this court, (1 Kern. 294,) two parties were sued as partners on a promissory note given in the name of the firm; one of them was shown to be the wife of the other and therefore not a partner. It was held, notwithstanding, that the action could proceed and judgment be had against the defendant who was liable. These were cases of joint contract, and they were alleged to be joint in the complaints founded upon them. The construction placed upon the code as intending to change the rule to which. I have referred, is decisive of the present case, and it is a reasonable and satisfactory one. The only difficulty in extracting the rule upon such a question arises from the infelicity of language which as usual characterizes this section. The code speaks of taking judgment *Page 176 against a part of the defendants severally, and of rendering judgment against one or more of the defendants, leaving the action to proceed against the others, whenever a several judgment would be proper. It seems to have been supposed by the defendant's counsel here, that the use of the word several, confined the operation of the section to cases where, although too many parties were made defendants, the liability of the others, if there were more than one who were proper parties, wasseveral in its character. But what is meant evidently is not a several but a separate judgment. The inconvenience arising from the rule of the common law, that where the subject of the suit was a joint contract, the recovery must be against all the defendants or neither, was what these provisions designed to remedy. Their true construction is, that when in an action upon a joint contract one or more of the defendants is proven not to be liable, and one or more of the others to be liable, a separate judgment may be given against those who are liable, whether their liability be joint or several, and the other defendants may be dismissed. The test is whether the plaintiff can recover in the action against any of the defendants if they had been sued alone. This test is to be applied to this action as it stands, and to the pleadings as they exist. In the present case the plaintiff would have been entitled to recover upon the present pleading against Holt and Ensign jointly, if the other three defendants had not been sued with them. He will not therefore be defeated, as the case now stands, because he has joined these three persons who were not liable, but he will have his judgment against those who are liable, and the others may have judgment against him. Nor will he be defeated, because if he had sued Holt and Ensign alone they might have pleaded the nonjoinder of other parties in abatement. They have not done so, and they stand on the record jointly liable to the plaintiff, while it is immaterial in this action whether others could have been sued or not. Merchant, Worden and Loomis, although alleged to have been *Page 177 jointly liable with Holt and Ensign, are to be struck out of the case, because no such liability is proved. This leaves Holt and Ensign liable and without any defense or objection on account of parties or otherwise, and it leaves them where they can not escape a judgment against them which is separate although it may not be properly several.
The judgment should be affirmed with costs.
All the Judges concurring,
Judgment affirmed.