Clark v. Winslow , 17 Me. 349 ( 1840 )

The opinion of the Court was drawn up by

Weston C. J.

The penal part of the bond in question, is joint in its terms; containing nothing indicating a several interest, or a several liability in the obligors. 5 Com. Dig. Obligation, F. The condition recites the several agreement of each to secure a certain proportion of a specified sum of money, by certain notes, to be further secured by mortgage on a certain township, subject to a prior mortgage.

Whether each had it in his power severally to execute a mort? gage, which would create a lien upon the township, does not appear from the condition. Perhaps however, this may be deduced, for it is expressly provided, that if they shall well and truly keep and perform their said several agreements, then the obligation shall be void, as to each one so performing.

The meaning of this singular combination of joint and several terms, may be somewhat obscure; but we are of opinion, that the intention of the parties may be best promoted, by giving them a literal interpretation. “ If we,” that is all, perform, then the obligation of each,.so performing, is to be void. The obligee did not iptend to accept performance, as to a fractional part, unless all performed. There might be strong reasons of convenience, for insisting upon this condition. He had a right to look to the whole sum to be secured and the land to be mortgaged, as collateral thereto, and to prescribe, that unless all performed, the obligation should remain-in full force.

But it is distinctly provided, that the obligation shall remain in force, unless the condition is performed. It is agreed, that this has not been done, by all or either of the obligors. As the penal part is joint, we perceive nothing that can or ought to relieve them from a joint liability for damages. Unless this had been intended, it is not easy to account for their uniting in an instrument of this character. The condition settles' the proportions, and determines what each was to do. If done, the obligee was bound to accept it. If not done, he holds their joint bond in full force, as security foi?' the damages he may have sustained.