City of Philadelphia v. Reeves & Cabot ( 1865 )

The opinion of the court was delivered, by

Strong, J.

— That the covenant for the payment of rent, upon which this suit was brought, imposed upon the defendants only an obligation jointly with Port Ihrie, their principal, is too clear for doubt. It is a general presumption of law, when two or more persons undertake an obligation, that they undertake jointly. Words of severance are necessary to overcome this primary presumption. In all written contracts, therefore, whether the liability incurred is joint or several, or joint and several, is to be determined by looking at the words of the instruments, and at them alone. The subject-matter of the contract, and the interests of the parties assuming a liability, have nothing to do with the question. It may be otherwise with respect to the rights of the covenantees, where there are more than one. There are not wanting cases in which it has been held that when the interests of the covenantees are several, they may sue severally, though the terms of the covenant upon which they sue are strictly joint. Even this, however, has been doubted. But, however it may be with the rights of covenantees, it is a settled rule that whether the liability of covenantors is joint, or several, or both, depends exclusively upon the words of the covenant. And the language of severalty or joinder is the test. The covenant is always joint, unless declared to be otherwise: Enys v. Donnithorne, 2 Burrows 1190; Philips v. Bonsall, 2 Binn. 138. It is true, that in the covenant to pa.y rent, contained in the lease to Port Ihrie, the two defendants are described as sureties, but they and the lessee undertook to pay the rent as one party. Their being described as sureties cannot be regarded as a declaration of intent to undertake severally. Nor does the covenant contain any words of several liability for rent. The defendants assumed no other obligation than that they and the lessee would pay. The case is indubitably within the general rule that a covenant by two or more is joint as to them, if not expressly declared several, or joint and several. The plea in abatement was therefore correctly sustained, and the judgment on the demurrer was right.

The judgment is affirmed.