Moss v. Wilson
Before: Expressed, Sprague, Temple
Synopsis
Appeal from tbe District Court of tbe Third District, Alameda County.
Tbe facts are stated in tbe opinion.
Tbe proposition of Sloan and Hartman was made, not to any persons by name, but to such as should undersign or subscribe. In tbe light of tbe subject to wbicb tbe contract related, it may be correctly assumed that tbe object and expectation of Hartman and Sloan was to get so many of tbe settlers (squatters) on tbe Mission lands as would secure to them tbe fees they were desirous to earn or secure, without reference to who tbe subscribers might be.
On tbe other band, tbe squatters, as they were called, i. e. persons opposing tbe confirmation of tbe grant, were willing to secure tbe services of Hartman and Sloan, and so co-operate to that end. But wben they came to consider and act upon tbe proposal,' they agreed, each for himself, to pay so much money toward the amounts to be paid as he should subscribe for, that is, such sum as he should set opposite his name, and would pay, as required by the terms of the proposal, and thus by separate subscriptions make up the aggregate sum, less the advance payment, which they had already contributed, and which was paid on the spot. That this rendering and construction of the undertaking of the subscribers is the correct one we refer to Lee v. Nixon, (28 Eng. L. and Eq. B. 70); Collins v. Prosser, (1 B. & 0. 682, 8 Eng. Com. L. B. 289); Keightley v. Watson, (3 Exch. 716); Servante v. James, (10 B & C. 410, 21 Eng. C. L. B. 177); Chitty on Contracts, 129; Id. 128, citing Collins v. Prosser, and cases cited, and Lee v. Nixon, supra.
The rule which holds that “if a sum in solido is advanced by several persons, the law implies a joint promise of repayment to all/’ or to state it in the language of another case, English v. Blandell, (8 Carr. & Payne, 332): “If several persons contribute their several proportions of a sum of money which is to be paid under a special contract to which they are parties, and the money is advanced as a sum in solido, and the contract is afterward abandoned or rescinded, the implied promise to refund the money arises in favor of all,” does not apply.
This rule laid down in the case cited, and in May v. May, (1 Carr. & Payne, p. 44), and in Brand v. Boulooit, (3 Bos. & Pul. 235), is based on an implied obligation to refund to all jointly the aggregate sum they have severally contributed in solido, i. e., in a whole sum paid by all without division. If the agreement had provided expressly for repayment, the expressed terms would control, and if the payment' is made in several sums by each contributor, then repayment shall be made to them severally. This is the doctrine of May v. May, Brand v. Boulcott and Osborne v. Harper, (5 East. 225.)
It follows, therefore, from these authorities, that in the case of several persons undertaking to pay several sums, though, such several sums go to make up an aggregate sum, their undertaking is several and not joint, though the undertaking with them by the other parties to whom the aggregate sum is paid, be joint. (See also Ohitty on Contracts, 128, citing Berkley dal. v. Pesgrove, 1 East. R. 226; and Smith v. Pocldington, 1 Comp. & Jerv. 445; Si. Paul’s Church v. Ford & Pomeroy, 31 Barb. R. 16; Ward v-.. Ward, 15 Pick. 511; Stevens v. Roll, 19 N. H. R. 560.)
Temple, J., delivered tbe opinion of tbe Court, Cuock-ett, J., Bhodes, C. J., and Wallace, J., concurring:
In 1857 Sloan and Hartman, plaintiffs assignors, made a proposition in writing to tbe settlers on tbe land known as tbe “Pico claim” (wbicb claim was tben pending in tbe United States'Courts for confirmation), to assist tbe Government of tbe United States in opposing tbe confirmation of tbe claim; and to furnish tbe necessary evidence therefor, the settlers to pay in band tbe sum of five hundred dollars to enable Sloan and Hartman to defray tbe necessary expenses of litigation, and to pay tbe further sum of forty-five hundred dollars in certain contingencies, and concluding as follows: “It being understood that tbe full amount wbicb said settlers are to pay to said Sloan and Hartman for a final rejection of said claim is tbe sum of five thousand dollars, and of wbicb said sum said Sloan and Hartman are to pay all tbe necessary costs and charges.”
Upon tbe paper containing this proposition Sloan and Hartman wrote an acceptance to be signed by tbe settlers, should they accede to the terms proposed. Tbe acceptance is-in tbe following words: “ The undersigned settlers, on tbe within named claim, agree to tbe foregoing jmoposition and will pay tbe sum annexed to their names, for the purpose aforesaid, as tbe same may be required according to tbe terms of tbe within.”
This paper purports to have been signed by thirty-three persons, each one of whom, except tbe last, has set after bis name tbe sum of $125. No sum is placed after tbe last name. Tbe document was returned to Sloan and Hartman, signed as above stated, and tbe first installment of $500 paid. Sloan and Hartman, thereupon, as is alleged, proceeded to perform tbe stipulated services, and this suit is brought to recover upon tbe contract, charging tbe signers jointly. Only eight of tbe defendants were served and judgment having been rendered against them, this appeal is taken.
Tbe only question of moment in tbe case is whether tbe [163]liability of tbe defendants is joint, ox several only. Tbe act contracted to be performed by Sloan and Hartman was an act to procure tbe rejection of tbe Pico claim. Tbe amount to be paid was one sum, and tbe first payment was made by Tyson, one of tbe settlers, for himself and tbe others. Tbe settlers agree in terms to tbe proposition made them. To this point there is nothing to indicate that a several liability only was intended, and bad this been all, no difficulty cCuld have arisen; and tbe only question is whether tbe addition of tbe words “and will pay tbe sum annexed to tbeir names for tbe purposes aforesaid,” under tbe circumstances of this case, limits tbe liability of tbe parties signing tbe acceptance to tbe sums resjjeetively set down by them.
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