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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 thereunder 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.)

(No. 30.)

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.

Edward Murray
agt.

Whiting Weeks, Marius Schoonmaker, Joseph 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. ]1

1

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.

above contract and of one dollar to us paid, we do hereby, jointly and severally, promise and bind ourselves, to and with the said Edward Murray, that the said Whiting Weeks shall and will well and faithfully and punctually perform the within contract, on his part, in all respects, and pay the moneys as therein specified.

Given under our hands and seals, this 3d day of July,

1850.

MARIUS SCHOONMAKER, [L. S.]
J. S. SMITH,

CHARLES DUBOIS.

[L. S.]

[L. S.]

That this plaintiff afterwards fully performed the said contract on his part,1 and that the same was fully completed on the 4th day of May, in the year 1852, and on that day he was entitled to have and receive from the said defendant, Whiting Weeks, and the said defendants, Marius Schoonmaker, Joseph S. Smith and Charles Dubois, upon the said contract, for the said work, a large sum of money, viz., the sum of $5,228.

That the said defendants have wholly failed to perform the said contract on their parts, and have wholly neglected and refused to pay the said sum of $5,228, as by the terms of the said contract they agreed to do, although often requested so to do by the said plaintiff, and are now indebted to the said plaintiff, upon the said contract, in the sum aforesaid, with interest from the 4th day of May, 1852.

'The language of the Code, which permits the performance of conditions precedent to be generally pleaded, is, "the party duly performed all the conditions on his part," (sec. 162); and this language should, in strictness, be used. Perhaps the above expression may be equivalent; no point, however, was raised upon it on the argument.

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Wherefore the said plaintiff demands judgment against the said defendants for the said sum of $5,228, with interest, besides costs.1

JOHN VAN BUREN,

Plaintiff's Attorney.

1 On demurrer to the foregoing complaint for the improper joinder of the three defendants, liable on the guaranty, with the original, contractor, Justice HARRIS, following the decision in Enos v. Thomas (4 How. Pr. R., 48), considered the demurrer not well taken; and this decision was affirmed by the General Term of the third district on appeal. (See this subject discussed, and authorities cited, Pleadings, 170, 171 and note.) As the question has been the subject of some conflicting opinions, and as the decision above referred to ought not to be regarded as going to the extent of holding that a mere guarantor can be sued with the principal contractor in all cases under the provisions of section 120 of the Code, I subjoin a brief statement of the points (prepared by the author for the argument on behalf of the plaintiff), and of the cases cited in their support. The question was raised on a demurrer put in by the three defendants who made the guaranty.

I. If the cause of action can be regarded as brought on the guarantee alone, then the defendants making the guarantee cannot demur for the improper joinder of a fourth defendant. Such objection can only be taken by the defendant improperly joined. (Brownson v. Gifford, 8 How., 392; Betts v. Genung, 5 Paige, 254; Whitbeck v. Edgar, 2 Barb. Ch. R., 206.) And it has even been held, under the Code, that an improper joinder, that is, a joinder of too many parties, defendants, is not a ground of demurrer at all. (Gregory v. Oaksmith, 12 How., 134; Churchill v. Trapp, 3 Abbott, 306; Peabody v. Washington County Mutual Insurance Company, 20 Barb., 340; see, also, Brimskill v. Jones, 1 Kernan, 294.)

II. If it be held that the cause of action be not on the guarantee alone, but on the agreements of all the defendants, then it is argued that the contract and guarantee constitute but a single instrument, and by section 120 of the Code the action may be brought against all or any of the parties. (Enos v. Thomas, 4 How., 48, and cases there cited; Union Bank v. Costar's Executors, 3 Comst., 204, and

(7.) IN ACTIONS TO RECOVER ON ACCOUNTS OR CLAIMS FOR GOODS SOLD, WORK, ETC., UNDER SECTION 158 OF THE CODE. AND GENERALLY IN CASES WHERE THE COMMON COUNTS WERE HERETOFORE USED.'

(No. 31.)

On an account for goods sold and delivered.2

Title of the Cause.

The plaintiffs complain against the defendants:

That the defendant is indebted to the plaintiffs, in the sum of $371.01, for goods sold and delivered by the

cases there cited; Manrow v. Durham, 3 Hill, 584; affirmed, 2 Comst., 534; Legget v. Raymond, 6 Hill, 639.)

In support of the demurrer, the defendants' counsel cited Brewster v. Silence (11 Barb., 144; 4 Selden, 207); De Ridder v. Schermerhorn (10 Barb., 639); Morehouse's Executors v. Ballou (16 Barb., 289); Hall v. Farmer & Doolittle (5 Denio, 548; affirmed, 2 Comst., 553); Le Roy v. Shaw (2 Duer, 627).

1 The old common counts were used in actions to recover for goods sold and delivered, or for goods bargained and sold; for work and labor done; for money had and received to the plaintiff's use; for money paid, laid out and expended for the defendant; for money lent; for use and occupation, &c. (See remarks on this subject, and how far common counts may be used in pleading under the Code, Pleadings, 254-266.)

2 This is the complaint in the case of Allen v. Patterson (3 Selden, 476), which the Court of Appeals held to be sufficient as a pleading under the Code. It should be recollected, however, that the question, as presented to the Court of Appeals, arose on a demurrer; and it has been held, both before and since that decision, that a pleading might be adjudged good, on demurrer, which might very properly have been held insufficient on a motion to make it more definite and certain. In Cheesborough v. New-York and Erie Railroad Company (13 How., 558), Justice PEABODY, criticising this complaint, very properly remarks

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