« ΠροηγούμενηΣυνέχεια »
July, 1857, at Troy, made his certain promissory note in writing, whereby he promised to pay to the defendant, C. D., or order, the sum of $250, three months from the date thereof, and the said payee thereof endorsed the said note to one A. L. M., by whom the said note was endorsed to the defendant, E. F., and by said E. F., for value received, endorsed to the plaintiff; and he believes that, when the said note became due and payable, it was duly presented for payment to the maker, and payment thereof was duly demanded, but the same was not paid, and that due notice thereof was thereupon given to the defendants, C. D. and E. F., and that said note is still due and unpaid.
Wherefore the plaintiff demands judgment against the said defendants, for the said principal sum of $250 and interest, from the 4th day of October, 1857, besides costs.
J. L. F.,
obtained, he may be made a defendant, the reason thereof being stated in the complaint. It is not deemed necessary to insert in this place a precedent to illustrate this provision, as such have been already given in Part II. (See No. 48, ante, p. 220.)
On a joint and several sealed note against the survivor and
representatives of deceased makers, alleging insolvency of survivor.1
SUPREME COURT-ESSEX COUNTY.
agt. C. D., and E. L and E. J., administrators, &c.,
of E F., deceased.
The plaintiff complains of the defendants, and alleges the following facts, constituting his cause of action.
That the defendants, C. D., and E. F., in the lifetime of said E. F., that is to say, on the
executed under their hands and seals, and delivered to the plaintiff, a promissory note, whereby, &c., [as in the preceding form, or, of which the following is a copy, ] which note is due and wholly unpaid.
* It should be observed, that the practice in cases of this kind can scarcely yet be regarded as entirely settled. The decision in Ricart v. Townsend (6 How., 460), holding that in an action brought to reach the partnership property, the surviving partner, and the representatives of the deceased partner may be joined, has not been sustained, and seems to be generally disapproved by subsequent decisions; and the construction put by the courts upon section 118 of the Code is not as broad as that claimed for it by the commissioners. Very few, if any, of the other cases have gone farther than to hold, or intimate, that the representatives of a deceased joint contractor can be properly united in the same suit only when the insolvency of the survivor is alleged. The complaint in the present case is drawn within the principle laid down in the case of York 0. Peck and others (14 Barb., 644). See this whole subject discussed, and various authorities cited, Pleadings, 161 - 166.
That on the day of the said E. F., then residing at in Essex county, died, and that such proceedings were thereupon had before the surrogate of said county that letters of administration of the goods and chattels of said deceased were duly issued on the — day of — to the defendants, E. L. and E. J., by order of the said surrogate of that day, and said E. L. and E. J. have duly qualified as such administrators, and have taken upon themselves the execution of such duty.
That C. D., the surviving maker of said note, is insolvent, and has been ever since the same became due, and has not sufficient property, exempt from execution, to pay said note or any part thereof, and the plaintiff cannot collect the same from him by legal process or otherwise.
Wherefore the plaintiff demands judgment against the defendant, C. D., individually, and against the defendants, E. L. and E. F., as administrators, &c., to be paid in the due course of administration of said estate, in the sum of $ with interest thereon from besides costs.
J. H. C.,
Against two of three makers of a joint and several bond.
Title of the Cause.
The plaintiff complains of the defendants, and alleges: That the defendants and one C. D. executed under
' In Morehouse's Executors v. Ballou and others (16 Barb., 289), it is intimated that, notwithstanding section 120 of the Code, the
their hands and seals, and delivered to the plaintiff, a certain writing obligatory, or bond, on the — day of whereby they acknowledged themselves jointly and severally bound to the said plaintiff in the penal sum of $. for the payment of which sum they jointly and severally bound themselves, their heirs, &c., with a condition there under written, that, [set forth condition.]
That said obligors have not, nor have either of them, performed said condition, or paid said sum of money therein mentioned, or any part thereof; but the same is due and still remains unpaid.
Wherefore the plaintiff demands judgment against the said defendants for the sum of $— with interest from
day of — besides costs.
common law rule is unchanged, and that two out of three or more joint or several makers could not, if the objections were properly taken, be made liable. Such a construction, however, seems inadmissible. Since that case the contrary has been held at General Term, namely, that two out of three parties, jointly and severally liable, may be sued, and that section 120 applies to bonds as well as to bills of exchange and promissory notes. (Brainard v. Jones and Provost, 11 How., 569.)
On written contract and guaranty, executed simultaneously,
the guaranty considered as forming part of the contract; action brought against all the parties.
SUPREME COURT-ULSTER COUNTY.
agt. Whiting Weeks, Marius Schoonmaker, Jo
seph S. Smith and Charles Dubois.
The plaintiff complains of the defendants, and alleges the following cause of action :
That heretofore certain articles of agreement were made and entered into between the said plaintiff, Edward Murray, of the first part, and the said defendant, Whiting Weeks, of the second part, under their respective hands and seals, and bearing date the 3d day of July, in the year 1850, and which said articles of agreement were in substance as follows: [ Set forth contract between plaintiff, Murray, and defendant, Weeks. ]"
That on the said 3d day of July, in the year 1850, the said defendants, Marius Schoonmaker, Joseph S. Smith and Charles Dubois, by writing, under their respective hands and seals, written at the foot of said agreement, executed simultaneously with said agreement, promised and agreed, to and with the said Edward Murray, in the words and figures following, viz: “In consideration of the
1 By the terms of the contract, Murray agreed to furnish and deliver certain stone for a church edifice, of a kind and in the manner provided in the contract, and Weeks agreed to pay him for the stone at the rates also provided for in the contract.