Cowley v. Patch
Massachusetts Supreme Judicial Court
Contract against the executor of John W. Graves. The declaration contained two counts, the first of which was for money had and received to the plaintiff’s use by the said Graves. The second count was for professional services and disbursements.
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Contract against the executor of John W. Graves. The declaration contained two counts, the first of which was for money had and received to the plaintiff’s use by the said Graves. The second count was for professional services and disbursements. The answer alleged, among other things, that if the testate was ever indebted to the plaintiff, as alleged, he was jointly indebted with one Henry H. Fuller, now living, and that the plaintiff had elected to prosecute his suits, for the indebtedness and identical subject-matter in each count contained, against Fuller to final judgments, which…
1Opinion of the CourtGray, C. J.
In order to maintain an action on a joint contract, whether the action is brought against one or against both of the joint contractors, it is necessary to prove the liability of both; for if one only is or ever was liable, there is not a joint, but only a several liability, and a variance from the cause of action declared on. For example, if one joint contractor is sued alone, -and does not plead in abatement the nonjoinder of the other, and judgment is rendered against the one sued, it merges the cause of action against him, and (unless otherwise provided by statute) as the two are no longer…
2Cases cited3 opinions
- Ward v. JohnsonMassachusetts Supreme Judicial Court · 1816
- Mason v. EldredSupreme Court of the United States · 1868
- New Haven & Northampton Co. v. HaydenMassachusetts Supreme Judicial Court · 1876
3Cited by14 opinions
- Home Owners Federal Savings & Loan Ass'n v. Northwestern Fire & Marine InsuranceMassachusetts Supreme Judicial Court · 1968
- Portland Gold Mining Co. v. Stratton's Independence, Ltd.Court of Appeals for the Eighth Circuit · 1907
- von Arnim v. American Tube WorksMassachusetts Supreme Judicial Court · 1905
- Giedrewicz v. DonovanMassachusetts Supreme Judicial Court · 1931
- Lee v. BlodgetMassachusetts Supreme Judicial Court · 1913
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