After a continuance, the opinion of the Court was drawn up by
Siiepley J.When the contract is made with several jointly, they should all sue for a breach of it, unless the case exhibits some good reason why they should not. The contract of the 26th of June, 1835, relied upon as proof in the case, though not declared upon, was made with the plaintiffs and Ransom Clark, who is not joined in the suit. To avoid the operation of this principle the plaintiffs’ counsel contends, that the beneficial interest and cause of action are several. But the contract affords no proof of a separate interest; the promise is to them jointly to pay the expenses of extending a mall, and to save them harmless “ against their bond.” In both those contracts they all three appear to be jointly liable; and in no other part of the case is there any evidence of a separate interest, except it appears, that after the defendant made his contract with them, the plaintiffs paid one half of the amount to be paid, and that Clark did not pay the other half. This affords no such evidence of a separate interest in the original contract made with the defendant, as authorizes separate suits. And if it did, the suit is brought neither jointly nor severally, and it cannot for that reason be sustained, unless, as the counsel for the plaintiffs contends, they must be regarded as one. The case does not furnish any proof of a joint interest, or of a partnership in those two, other than what is common to joint contractors.
The other claim arises out of a payment made to the holder by the two plaintiffs upon a note signed by the defendant and payable to them and Clark, or order, and indorsed by them. There being no proof, that the payment was made out of a joint fund of the plaintiffs, the presumption is, if not made on the joint account of the promisees, that it was made by each severally according to their respective legal obligations. Lombard et al. v. Cobb, ante. p. 222. The action not being brought on the ground of a joint, or several, contract, cannot upon the proof in the case be sustained, and according to the agreement, there must be
Judgment for defendant.