Snow v. Howard , 35 Barb. 55 ( 1860 )

By the Court, Welles, J.

The only question in this case is, whether the defendant is liable upon the note signed “ Budrow & Howard,” in an action brought against him alone, without joining Budrow as a defendant with him in the action. It is the general rule, that in an action to recover a debt due by several persons, upon a contract which is joint and not several, all .the joint obligors must be made parties defendant. If any are omitted, those sued may plead the non-joinder in abatement. If they omit to set up the 'objection in their pleading, they lose the benefit of the defense. Debts due by partners as such are of this character. But I have no doubt that joint debtors may make their debt joint and several. They may bind themselves jointly and severally to pay it, and be - afterwards sued severally for it. In this case, the firm of Budrow & Howard have thus obligated themselves to pay the note in question, and Howard, at least, is liable to be sued upon it, separately or jointly with Bud-row. Whether Budrow would be liable to be sued alone, under the facts disclosed, it is not necessary to decide. But the defendant, Howard, who executed the note for himself and his partner Budrow in their partnership name, cannot be permitted to say he was not authorized to execute the note in the terms and form in which it appears. It is: at least a binding transaction upon him individually. The case is plainly distinguishable from Van Tine v. Crane and Platt, (1 Wend. 524,) relied upon by the defendant’s counsel. There the action .was upon a note joint and several in terms, made by one of the defendants in their partnership name of Crane & Platt, (they being partners in trade under that name and style,) and by one Robert F. Van Tine. The action was brought by Henry Van Tine against Crane & Platt only, who pleaded in abatement the non-joinder of the other maker. The court overruled the plea. The defendant’s counsel contended, on the argument in that case, that inasmuch as the note was joint and several in its terms, it should be regarded in that light with réspect to each and all of the makers; in which case the plaintiff should have sued either one of the makers, or all of them, but could not select two and omit the other. But the court held that the true construction of the note and the liabilities of the respective makers was, that the note should be regarded as having been subscribed by only two persons, the firm of Crane & Platt being one, and the maker, Van Tine, the other. In that view, the decision was clearly right. But in the present case, Budrow & Howard were the only makers, and their undertaking must therefore be deemed several as well as joint; or the express provision that the promise was joint and several must be disregarded. This we are not at liberty to do, but must give effect to the contract as made by the parties themselves. See the case of Robertson v. Smith, (18 John. 459,) particularly the remarks of Cady and Talcott, arguendo, near the foot of page 464.

[Monroe General Term, March 5, 1860.

The judgment should be affirmed.

Strong, Welles and Johnson, Justices.]