Ripley v. Crooker , 47 Me. 370 ( 1860 )

The opinion of the Court was drawn up by

Mat, J.

The contract set forth in the writ, is of two parts. In its direct terms, it is' between the plaintiff “ on the one part,” and the defendants “ on the other.” Its language is too unequivocal in its meaning, to admit of any other construction than that of a joint undertaking, on the part of the defendants, to pay for the eleven-sixteenths of the ship built for them, at her cost, in the manner and at the times stipulated in the contract. The contract contains no words fairly indicative of a several liability by each of the defendants for particular parts of the ship; but, on the contrary, the defendants together agree to pay the entire price which was to be paid, for that portion of the ship which they together agreed to take, and which the plaintiff agreed to build for them.

The fact, that words indicative of the proportional part of the ship which each defendant was to take were set against the name of each, does not change the construction of the contract, nor in any way affect the joint liability of the defendants. Such words do not sufficiently show an intention to limit the liability of each defendant to his proportion of the ship, and cannot, therefore, control the general language used in the contract, so far as the plaintiff is concerned. They may, however, like the word surety or sureties appended to some of the signatures upon a note, serve to show the relations subsisting between the parties of the second part of the contract; but they cannot be permitted to subvert, or even modify the unambiguous terms of the contract, as made by the parties themselves. -

It is contended, in defence, that the terms of the contract are modified by the proof in the case, tending to show the existence of a custom on the Kennebec river for persons engaged in the building of vessels each to be responsible only for his own share. In the case before us, the contract is in writing, and there is no proof that any of its words are by usage or custom understood to be used in any other than their ordinary sense. The custom which is attempted to be proved does not reach this case. To allow such a custom to modify the written contract of the parties would be to set it up against their express agreement and manifest intentions, which the law will not permit. See Metcalf v. Weld & al., just decided in Massachusetts, and reported in the Law Reporter, vol. 23, No. 9, p. 561.

Again, it is said that both the plaintiff and the defendants have always treated this contract as several and not joint; and it fully appears from the evidence that payments have been made by the defendants severally, and receipts given by the plaintiff therefor, which clearly indicate that such payments were made by each defendant towards his particular share of the ship, and were so received. If the contract was doubtful in its construction, such facts might well aid the Court in determining the intention of the parties in making it; but, in a case like this, where there is no ambiguity in its terms, it is not perceived how the subsequent conduct of the parties can change the plain meaning of the contract, or take away the appropriate remedy thereon, unless such conduct amounts to a severance of the joint liability, or consists of acts which may fairly operate as a release from such liability. But, where several persons are jointly indebted, and one of them pays his specific share of the debt, and it is received and receipted for by the creditor as such, such payment will not exonerate the party paying from his liability for the residue of the debt. Such receipt, not being under seal, is neither a severance of the indebtedness, nor an effectual release; and, notwithstanding such receipt, the parties to the contract will remain jointly bound, to the extent of what is unpaid, in the same manner as if no such specific payment had been made. McAllister & al. v. Sprague & al., 34 Maine, 296.

It is further urged that, notwithstanding the contract may be joint, the only remedy upon it is by a bill in equity. We do not so understand the law. The fact that the contract relates to the building of a ship, of which the plaintiff and defendants are to be tenants in common, does not deprive the plaintiff of his remedy by an action at law for such breaches thereof as may be proved to exist. The rule that equity must be resorted to by part owners of a vessel for the adjustment of the affairs between them, applies to cases relating to her earnings and disbursements, when no settlement has been made or account stated between them; but does not apply to cases of contract growing out of the original construction of the vessel, notwithstanding the builder is a part owner, any more than to promissory notes given by the purchaser to such builder for a specific portion of the vessel. Such contracts do not relate to the use and management of the vessel, and therefore are not within the reason of the rule which requires a party to proceed in equity. In such cases, an action at law is the appropriate remedy. Such action may also be maintained between partners in similar cases. Parsons’ Mercantile Law, p. 182, note 2, and p. 183, note 1. •

The result is, that the defendants are to be defaulted, and, by the agreement of the parties, an auditor is to be appointed to assess the damages. Defendants defaulted.

Tenney, C. J., and Rice, Cutting, Goodenow, and Davis, JJ., concurred.