Robinson v. Cushing , 11 Me. 480 ( 1834 )

Mellen C. J.

This case comes before us on exceptions taken to the opinion and instructions of the presiding Judge of the Court of Common Pleas, and the only question is, whether it is competent for the plaintiff to maintain the action in his own name alone, or whether Levi Robinson should have been joined as co-plaintiff It appears by the exceptions, that at the time the services were performed for the defendant and for which compensation is sought in this action, the plaintiff and Levi Robinson were joint owners of the schooner Polly, and, of course, jointly entitled to her earnings. It is a principle of law, perfectly settled, tliat joint contractors must sue and be sued jointly. If all the joint contractors on one side are not sued, the non-joinder of those who should have been joined can be taken advantage of only by plea in abatement: but if all the joint contractors on the other side are not joined as plaintijfs, the defendants may take advantage of such non-joinder upon the general issue and defeat the action. In the case before us the defendant relies on this kind of objection ; and we must pronounce it a fatal one, unless something peculiar in the facts relieves this case from the opera-ation of the general principle. The plaintiff was master of the schooner, and in that capacity was also agent for the other owner. It appears that Levi Robinson was present when the defendant applied to the plaintiff to take his goods from the wreck and to perform the services with the vessel and crew. That circumstance is of no importance: nor do we perceive that the memorandum signed by the defendant, thereby agreeing to settle with the plaintiff for the amount of seven dollars and fifty cents for freight and passage, has any effect upon the question of joinder. The plaintiff represented and acted for both owners; and the contract, in legal contemplation was made with both ; Abbot on Shipping, 92; and both should have been joined as plaintiffs. Accordingly, the exceptions are sustained and the verdict set aside. A new trial can be of no use, and judgment must be entered in favor of the defendant for his costs.