Robinson v. Robinson , 10 Me. 240 ( 1833 )

Mellen C. J.

delivered the opinion of the Court.

It appears that the defendant was one of the persons who signed the subscription paper, and subscribed $25 towards accomplishing the object expressed therein ; and that afterwards, and before the plaintiff commenced working on the building, at a meeting of the subscribers, he was chosen an agent “ to “ employ workmen, purchase materials, and generally carry on “ the work and that the defendant afterwards employed the plaintiff as master-carpenter, and he performed the work for which he seeks payment in this action. Having the above-mentioned authority, the defendant, by the contract made with the plaintiff, bound all the subscribers, and himself among the rest; and the plaintiff might have maintained an action against all the subscribers jointly ; for they were all joint promissors; instead of doing which, he commenced the present action against only one of the subscribers. The action might have been defeated, if the defendant had pleaded in abatement the non-joinder of the other subscribers, as co-defendants ; but he has lost the opportunity of availing himself of this objection, by pleading the general issue. The principles above stated are perfectly clear, and their application is familiar in practice. When the parties examined their accounts, on the 15th of August, 1829, and the certificate of the amount due to the plaintiff was given to him, the defendant still acted as agent of the subscribers. It is perfect justice that the plaintiff, who has done the labour, should be paid for it. It may operate hardly on the defendant to be compelled to pay the whole sum due, still, as one of the joint contractors, he was liable, and each was liable for the whole. It may be unfortunate that he lost his opportunity to defeat the action, still, he must blame himself ; and if he has any remedy against the other subscribers for contribution, he must resort to that or bear the loss himself. We are all of opinion that the action is maintained. A default must be entered according to the agreement of the parties.

Defendant defaulted.