Rhind v. Hyndman

Bartol, C. J., delivered the opinion of the Court. This suit was brought by the appellant against theappellees on the 19th day of June 1879. The contract sued on, is alleged in the declaration to have been made with the appellant, by the appellees jointly, on the 29th day of March 1875, whereby the appellees agreed, for the consideration therein stated, to transfer to the appellant on or after the 15th day of October 1875, shares of stock of the Empire Coal Company of Allegany County, sufficient to amount to $500, at the market price of said stock, when the transfer should be demanded. The declaration in the first and third counts alleged a demand for the transfer of the stock, made upon Hyndman, one of the appellees, on the 11th day of July 1878.

The demurrer to these counts was sustained. The sixth plea of the appellees alleges “ that the said stock was demandable by the said plaintiff immediately after the fifteenth day of October 1875, and it was the duty of the plaintiff to demand the same within a reasonable time after said fifteenth day of October, and more than three years expired after the end of such reasonable time-for making said demand, and before the bringing of this suit.” To this plea the appellant demurred, the demurrer was. overruled, and judgment being entered for the defendants, the plaintiff has appealed. Two questions are presented for our decision: 1st. Is a demand made upon one of several joint contractors, not partners, for the performance of a contract to be performed on demand, sufficient to bind all the joint contractors, the joint contract not being a negotiable instrument ? 2nd.

Erom what time does the Statute of Limitations begin to run, against an action upon a contract not negotiable, to be performed on demand ? 1st. Where joint contractors are partners, it is well settled that a demand on one is sufficient to bind all. ⁵²⁹ Where no such partnership exists, hut the parties are jointly hound, a distinction has been made between negotiable instruments and joint contracts not negotiable. With respect to the former, many cases have been cited by the appellees showing that in order to bind the endorsers, a demand must be made upon each one of the joint drawers, and that a demand on one is not sufficient; and in the same manner where there are joint endorsers, not partners, notice of dishonor must be given to each. On this subject tire authorities nearly all concur; the case of Harris vs. Clark, 10 Ohio, 5, where the contrary was held, may be considered exceptional.

The reasons for the rule are very well stated by Swift, •Ch. J., and Goddard, J., in Shepard vs. Hawley, 1 Conn., 367 . The reasons which govern the liability of parties upon negotiable paper have not been held applicable to .joint contracts, which are not within the law merchant. In Chitty’s Pl., (16th Am.

Ed.,) 340, note, it is said: “ Where a previous demand is necessary to maintain a suit against two joint promisors, it is sufficient to aver a ■demand on one.” For this are cited Griswold vs. Plumb, 13 Mass., 288 , and McFarland vs. Crary, 8 Cowen, 253. In McFarland vs. Crary the joint contractors were partners, it is therefore inapplicable. But in Griswold vs. Plumb the point was distinctly decided. There two persons became bailees of goods, to be delivered on demand, •and it was held that a demand on one -was sufficient, their undertaking being joint.

The law is stated in the same way in 1 Waite on Actions and Defences, 395. In Holbrook vs. Holbrook, 15 Maine, 9, it was held, “If two are jointly liable a demand made upon, or notice given to one, is equally binding on both.” In 3 Comyn Dig. L., page 120, it is laid down “that if •several are bound by obligation, covenant, &c., to do an act upon notice to them, notice to one is sufficient.” Terry & Lowe vs. Reding, Moore's (K. B.) R., 555. ⁵³⁰ In Whitcomb vs. Whiting, 2 Doug., 652, it was decided that part payment by one of several joint promisors on a. note, was good to remove the bar of the Statute against all the joint contractors. That decision was followed by Perham vs. Raynal, 2 Bing., 306, and Burleigh vs. Scott, 8 B. & Cres., 36.

And Mr. Grreenleaf says, though sometimes questioned, seems, now firmly established. 1 Greenleaf Ev., sec. 174, (note). In Ellicott vs. Nichols, 7 Gill, 104 , the Court say, in speaking of Whitcomb vs. Whiting, “ The promisors were-subjected to a joint and common responsibility ; under such circumstances, it might well he maintained, that a payment made by one of the parties to the note, was. a payment made for the benefit of all.” And on page 106, referring to the same case, the Court say, “because at