The opinion of the court was delivered by
Ross, J.
On the facts shown and concessions made by the plaintiffs on the trial, the County Court ordered a verdict for the defendant. This action of the County Court was not erroneous, if the facts and concessions clearly showed that the plaintiffs were not entitled to recover in this action. The declaration counts
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upon a liability of the defendant to the plaintiffs jointly, growing out of an agreement under seal, signed by each of the plaintiffs and the defendant, with reference to the expense of the defence of certain anticipated suits against any one of the parties or his customers, by Lane, Pitkin & Brock, for an infringement of certain patent rights in the manufacture of circular saw-mills ; and avers that the defendant agreed to pay his proportion of such expenses to the defendant defending said suits. It alleges that the agreement was an indenture between the plaintiffs and the defendant. This is tantamount to an averment that the plaintiffs jointly formed one party to the indenture and the defendant the other. The agreement put in evidence by the plaintiffs is the several agreement of each of the parties thereto with every other party to the same “ to pay his equal proportion of the damages, costs and expenses of defending all suits which shall be brought and tried for the purpose of testing said right, whether brought against either or all of us, or either of our customers ; and we each agree to furnish an equal proportion of the money which may be necessary from time to time to pay the expenses of such defense, to be paid to the defendants trying said cases.” Under the declaration and this agreement, the plaintiffs, to lay the foundation for a recovery, must show that they had incurred expenses in defending a suit brought by Lane, Pitkin & Brock against them jointly to which the defendant had not contributed his proportionate share, or, at least, that they had jointly incurred and paid expenses in- defending such suits as are covered by the agreement, brought against some one of them or against the customers of some one of them. This is the most favorable statement of the plaintiffs’ right to recover jointly. It is even questionable whether a suit in favor of all the plaintiffs jointly could be maintained against the defendant on this latter class of expenses ; whether, by the terms of the agreement, the promise of the defendant is not to such one of the plaintiffs only as should defend a suit against himself or his customers. On the conceded facts, giving the agreement the construction most favorable to the plaintiffs, no 'such indebtedness from the defendant to the plaintiffs jointly existed. But three suits had been brought, two against parties to Page 6
the agreement, and one against a customer of a party. Some of the plaintiffs had fully paid their proportion of the expenses of those suits, some had paid less than their proportion, and one had not paid anything. No indebtedness from the defendant under said agreement to the plaintiffs jointly was shown or claimed, on the trial. It was only in regard to such an indebtedness that the declaration called upon the defendant to answer. The declaration gave him no notice that he would be called upon to answer to an indebtedness which might exist in favor of some one of the plaintiffs separately against him under said agreement, and the pleadings put no such agreement, or covenant, nor the non-performance of such an agreement or covenant by the defendant, in issue. Hence, on the pleadings, evidence, and concessions, the court correctly ordered a verdict for defendant. These views dispose of this case. We are not called upon to advise the plaintiffs in regard to what may be their proper remedy on the facts claimed by them to exist under said agreement. We are only charged with the duty, at present, of deciding this case. When other cases shall have been brought and tried, it will be soon enough to announce the views of this court thereon.
Judgment affirmed.