M'Gilvery v. Moorhead
Before: Murray
Synopsis
Where a joint contract was made by M. and C., for the purchase of a quantity of flour of defendants, and the defendants delivered one portion of the flour to M., and another to C., on their respective orders, and received payment from them severally, and settled with C., and then cancelled the contract with regard to him, and M. afterwards sued for damages, alleged to have been sustained by him alone, on the contract, Held, that if plaintiff relied upon the original contract between him and C. and the defendants, he could not sue without joining C. in tlie action.
Murray, Chief Justice, delivered the opinion of the court. Heydenfeldt, Justice, concurred.
This appeal is prosecuted from the order of the court below, granting a new trial. The only question for our consideration [271]is, whether Chapman should have been joined as a co-plaintiff. It is evident that if the plaintiff relied upon the original contract between Chapman, himself, and the defendants, he could not sue without joining Chapman.
There is, on the other hand, no sufficient proof going to establish the alteration of the original or the substitution of a new and independent contract, and even if there was, the instructions refused by the court in relation thereto would be error.
Judgment reversed, and new trial ordered.
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