Catlin v. Barnard ( 1825 )

The opinion of the Court was delivered by

Royce, J.

The sole question submitted in this case is, whether a joint action can be supported for the non-payment of both or either of the rents mentioned in the covenant of the defendants, or, whether the plaintiffs should not have separately sued for the sums to be paid to them respectively ? The property out of which the rent was to issue was leased to the defendants in part by the plaintiffs jointly, and in part by Guy Catlin alone. Whether the respective interests of the plaintiffs in the estate demised, were in the same relative proportion to each other as their respective portions of the rent reserved, does not appear; but the fair inference from the transaction is probably in favour of that supposition. And it is also to be inferred, that the several sums were to be received by the plaintiffs in their own individual rights, respectively. If, therefore, there is nothing in the covenant itself which makes it joint, the present action ought not to prevail. The indenture consisted of three parts: Lynde Catlin making the first part, Guy Catlin the second, and the defendants the third. It contains a joint demise from the plaintiffs to the defendants, of the factory; and from Guy Catlin alone, to the defendants, of the machinery and tools in the factory, and of the clothier’s shop. Then follows a reservation of rent in the usual words: “yielding and paying therefor yearly anc* eveiT }’ear? to the said Lynde Catlin, the sum of three hundred and forty-five dollars, and to the said Guy Catlin, the sum of seven hundred dollars, on the first day of May in each year.” Thus far the stipulation for rent appears to correspond to the supposed several interests of the plaintiffs in the estate demised, and in the rent when paid. And upon these words a joint action for the rent would not lie. But the parties saw fit to introduce a further express covenant from the defendants to the plaintiffs, which we understand to have been in these words: “And the said Barnard and Burnham do covenant and agree with the said Lynde Catlin and Guy Catlin, among other things, that they will pay to the said Lynde Catlin, on the first day of May, A. D. 1824, the sum of three hundred and forty-five dollars, and that they will pay to the said Guy Catlin, on the said first day of May, 1824, &c. the sum of seven hundred dollars.” And upon this latter covenant the action is brought.

As already remarked, separate acts were to be performed to each of the plaintiffs, in which they were to be separately interested ; and the question is, whether the legal interest in the covenant, while unperformed, follows the ultimate heneficial interest in the fruits of it ? It is difficult to discover the object of the parties, in adding this covenant, if it was not to vary their respective rights and liabilities, which were otherwise sufficiently declared in the preceding parts of the indenture. Enough had been already said to entitle each of the plaintiffs to his respective portion of the rent; and though a more explicit engagement were supposed necessary; yet, if the purpose remained the same, why was not the express covenant for payment made to each of the plaintiffs separately ? or why was not this covenant qualified by the introduction of disjunctive expressions ; as the word respectively, or the more common words, and each of them ? Every such expression appears to be studiously avoided, and the covenant is couched in the most explicit terms of a joint undertaking to both the plaintiffs. And we are of opinion, that no views to the consideration of the covenant, to the separate interests of the plaintiffs in tbe rent when received, will justify us to control the clear language of this contract. With suitable disjunctive expressions,' this covenant would certainly have been construed to be several with each of the plaintiffs, by reason of their several interests; but without such expressions, it must be considered joint, for such are its terms. And this opinion is not without precedent. In Slings-by’s case 5, Co. 19, it is said, “when it appears by the declaration, that every of the covenantees hath, or is to have, a several interest or estate, then, when the covenant is made with the covenantees, and with each of them, these words, with each of them, make the covenant several in respect of their several interests.” This doctine is recognized in 1 East, 500, where Lord Kenyon, in speaking of Slingsby’s case, with reference to this point, has the following observation. “And this distinction was taken which appears to be very sensible, that where every of the covenantees is to have a several interest or estate, there the addition of the words with each of them will make the covenant several in respect of their several interests.” The same is repeated, 1 Saund. 155, (note 2.) From these authorities two things appear to be necessary to change a covenant to two or more persons, apparently joint, into seveial covenants to each of the covenantees: First, a several interest of each covenantee in the fruits of the covenant, and secondly the addition of the words, with each of them, or other equivalent expression. It is granted that the first of these requisites exists in this case, and we are called upon to dispense with the last. But we do not esteem the distinction as merely fornial, but as founded in reason, and fit to be observed. The covenant in question is therefore a joint covenant to both the plaintiffs, and the present joint action is properly brought.

Charles Adams, attorney for the plaintiffs. J. C. Thompson and Heman Allen, attornies for the defendants.

Judgment, that the declaration is sufficient.