Ulmer v. Cunningham , 2 Me. 117 ( 1822 )

Melubn C. J.

This being an action of assumpsit in which the plaintiffs declare on a promise made to them jointly, such promise must either be proved to have been made expressly, or else implied by law; — and the defendant may avail himself of the want of such proof, upon the general issue. Chilly 54. In the present case there is no proof of an express promise; and by the report it appears that the property, for the proceeds oí which the action was brought, “ belonged to some of the plain- “ tiffs, but not to all, in severalty: and that no part of the goods “ seized belonged to all the plaintiffs jointly A If the goods seized had not been sold, the plaintiffs could not have joined in an action of replevin- for them. Co. Litt. 145. b. — The nature of the promise which the law implies corresponds with the nature and ownership of the property which the defendant has taken, sold and turned into cash. That being the several and not the joint property of the plaintiffs, if any promise is implied on the part of the defendant to the plaintiffs in the present case$ it is not a joint one ; and of course does not support the declaration ; and if any unlawful fees were taken by the defendant, it appears that such fees ivere deducted from the money arising from the sales of the property: and that not belonging jointly to the plaintiffs, the amount of sales did not; nor, of course, the unlawful fees so retained. I'he objection, therefore,'lies to the whole sum demanded. In the case of Weller & al. v. Baker, 2 Wils. 423, the Court considered the interest of the Tunbridge Dippers as a joint one, and the injury which they had sustained by the act of the defendant as a joint injury. So in Conylon f all •s. Lilhebye, 2 Baund. 115, though the plaintiffs’interest in the mills was several, the damage they had suffered was joint. Both actions were maintained. In Osborn & al. v. Harper, 5 East. 225, the sum sued for had been paid by the plaintiffs from a joint fund procured on their joint credit. On this ground, after some doubt, the action was sustained. In the casé from Roll. Abr. 31, pl. 9. and cited in 2 Sdund. 116,5. there was an express promise made to the plaintiffs jointly, founded cm a joint consideration. On this ground the plaintiffs were permitted to recover. But all the before mentioned cases were different from the present, and founded and decided on different principles;

As we are all satisüed, for the reasons we have assigned, that the nonsuit was properly ordered,- it becomes unnecessary for us to examine the other branch of the defence; Accordingly the motion to set aside the nonsuit is overruled and there must be judgment entered for the defendant for his costs*