Petition for rehearing denied December 9, 1930. ON PETITION FOR REHEARING (293 P. 720) In Banc. The appealing defendants have presented an urgent petition for rehearing. Owing to the fact that the question involved is one of first impression the petition has had very careful examination. In the main the petition treats of matters that were decided after due consideration and the reasons for the decision are stated in the original opinion.
No case has been cited by appellants directly in support of their contention here. The case of Hayden v. Pearce, 33 Or. 89 (52 P. 1049), is not in point because *Page 426 in that case plaintiff Pearce in an action against Hayden and another sought to recover on two different obligations on one of which the other party was not liable.
The case of Franklin v. Ferguson et al., 112 Or. 641 (229 P. 683, 1119), is not in point. The judgment there is based on the fact that the contract sued upon was several, not joint. The result of that decision is the same as though the parties had signed different instruments expressing their several liability.
In the instant case the parties were liable on the same instruments and no sufficient reason has been assigned why the case should not have been tried as it was though different amounts are expressed in the judgment against the defendants, who were jointly and severally liable. We adhere to our former decision that Or. L., §§ 180 and 181; Oregon Code 1930, 2-902, 2-903, authorize such a judgment as was rendered in the case at bar. This court held in Ruble v. Coyote G. S.M. Co., 10 Or. 39,41, that these sections "give the courts of law as full power to try the issues in such a case, and adjust and settle the various rights of the parties, both plaintiff and defendant, as the courts of equity could have."
It cannot be successfully contended that a court of equity cannot render judgment for different amounts in the same case against several defendants. Suppose the amount of rent due was less than the amount for which defendants Cohen and Weinstein were liable for under their bond. There could then be no objection for returning the judgment for the amount due. We held that the mere fact that the amount due from the different parties is not exactly the same does not deprive the court of the power to determine the amount *Page 427 and render judgment in the one case. This conclusion, we think, is in harmony with the trend of the judicial settlement of cases, that is, to minimize the amount of litigation to determine the questions litigated.
We are sorry that the language we used in the original opinion in reference to the organization of the corporation was taken as a personal reflection on any of the parties to the case. We did not intend to intimate that any fraud or unfair dealing had been practiced. Our remarks were entirely impersonal and referred to the common practice of conducting business through corporations. The writer of the opinion had no thought of charging anyone with questionable practice.
Rehearing is denied. *Page 428