Van Zandt v. Winters

Opinion by

Beaver, J.,

Plaintiffs brought their action in assumpsit against four joint debtors for certain sums alleged to be due under the terms of a written agreement and certain other sums for expenses authorized by parol. Three of the defendants were served and as to the fourth there was a return of “ nihil habet.” As to one of the defendants no affidavit of defense was filed. The remaining two filed separate affidavits of defense. Judgments were taken against the three upon whom service was had upon the same day, for the same amount, against the one for want of an affidavit of defense, and against the others for want of a sufficient affidavit of defense.

The defendants claim that judgment cannot be taken against less than the entire number of defendants, when a joint contract is declared upon against all. They evidently lose sight of the fact, however, that one of the defendants was not served and that judgments were entered against all of the others at the same time. We see no irregularity in this. If all had been served, the question might properly have been raised under the authorities cited by the defendants. In Murtland v. Floyd et al., 153 Pa. 99, upon which the defendants rely, the rule is thus stated: “Thus it will be seen that the common law required a creditor to pursue all of his joint debtors pari passu, so far as he could, and, when by causes for which he was not responsible, the symmetry of his proceedings was disturbed, they must still be such as would eventuate in one final judgment against all who were liable and could be brought into court. Severance by the plaintiff’s own act or connivance, either before suit or in the writ or proceedings at any stage thereof was fatal (Taylor v. Henderson, 17 S. & R. 453; Moore v. Hepburn, 5 Pa. 399), but was permitted to whatever extent it was forced upon him. And, although many and important changes have been made in the common law enlarging the rights of the creditor and affecting the mode of procedure upon joint contracts, none have gone so far as to sanction any unfairness towards a debtor or authorize a severance in the proceedings, at any stage thereof, at the mere caprice of the plaintiff or the entry of more than one final judgment for any other purpose than that of lien in any personal action: O’Neal v. O’Neal, 4 W. & S. 130.” There was no severance here on the part of the plaintiff. He brought the suit against the four joint contractors and took judgment against all who were within the jurisdiction of the court. This, as we understand it, is all that can be claimed under the rule invoked. The specifications of error, so far as they relate to this alleged irregularity, are, therefore, dismissed.

The plaintiffs’ claim, so far as it is founded upon the written contract, is practically admitted by the defendants, with the exception of the amount claimed for the “ written report covering their services and findings in the investigation of the certain several propositions hereinbefore stated,” for which the sum of |250 was to be paid. This report, as appears by the contract, was to be an expert report of tbe defendants. It is alleged in the affidavit of defense that the “plaintiff Van Zandt never submitted any written expert report to the defendants in regard to the property which he was employed to investigate. He did join in a written statement with plaintiff Snyder but he did not make any scientific, technical or expert report such as he was employed to make; that this deponent is not indebted to the said Van Zandt in any sum whatever for said report, the same being entirely worthless.”

By the terms of the written agreement, the employment of the plaintiffs by the defendants was for a limited period, “ not to exceed thirty days,” upon the island of Cuba, and the time necessary to go and return, which is stated to be eight days. The time claimed for by the plaintiffs, in addition to the period mentioned in the agreement, is averred in both of the affidavits of defense to have been unauthorized by the defendants who made the affidavits or anyone by their authority. The same is true as to the expenses claimed by one of the plaintiffs in traveling to and fro in this country. The averments in relation to these items are specific and are, in our opinion, sufficient to prevent judgment being entered therefor.

Inasmuch as the services were joint and to be paid for jointly at the rate of $20.00 per day, it would seem as though the plaintiffs were entitled to this amount for the thirty-eight days provided for in the written agreement. The defendants admit their liability for $5.00 and $15.00 of expense money paid by the plaintiffs in their journey to and from Cuba. This would leave the account stand, as admitted or due under our construction of the agreement as to joint service,—thirty-eight days’ services under the agreement at $20.00, $760; expense money admitted, $5.00-|-$15.00, $20.00; total, $780, less amount admitted to be paid on account $290, which would leave $490 for which the plaintiffs are entitled to judgment. As to the balance, we think the affidavits sufficiently aver a defense upon which the defendants are entitled to go to a jury. Judgment affirmed for the sum of $490, admitted to be due under the agreement as herein specified and as to the balance it is reversed with a procedendo.