Richardson v. Jones, 23 N.C. 296, 1 Ired. 296 (1840)

Dec. 1840 · Supreme Court of North Carolina

23 N.C. 296, 1 Ired. 296

WILLIAM RICHARDSON AND THE EXECUTORS OF JOHN WALL vs. EDMUND JONES & al.

Where a bond is given to “A. and B. and other obligees,” to be paid to the said “A. and B.” an action for the breach of this bond cannot be brought in the name of A. and B. alone, without joining the others or shewing that A. and B. are the surviving obligees.

A payment to A. and B. would discharge the obligation; bat if payment is not made, the suit must be brought in the name of the parties, with whom the obligation was contracted.

This was an action of debt, tried at Spring Term, 1840, of Rutherford Superior Court of Law, before Bailey, Judge, in which the plaintiff, submitting to the opinion of the Court, was nonsuited, and appealed to the Supreme-Court. The facts are stated by the Judge who delivered the opinion of the Court.

Saunders for the plaintiff.

Bynum for the defendant.

Daniel, Judge.

This was an action for debt on a specialty: plea, non est factum. The plaintiffs declared on a bond dated, on the 16th April, 1823, for the sum of £8,500, made and executed to William Richardson and John Wall, as obligees. On the trial, the plaintiffs, to support their declaration, offered in evidence a bond for the same sum and date, but executed by the defendants to the said William Richardson and John Wall, Esqrs: “ and the rest of the justices assigned to keep the peace for Rutherford county,” “ to be paid to the said William Richardson and John Wall.” The reading of this bond in evidence was objected to, as it appeared to be a bond given to more joint obligees, than the one declared on professed to be. The court rejected the evidence; and the plaintiffs were nonsuited and appealed.

If the obligors, on a breach of the bond, had paid to Richardson and Wall, it would have been a good satisfaction and discharge. But if the obligors failed to pay as it is alleged they did, then the instrument offered in évidence informs us that the obligors have contracted, under their seal, ° with several other obligees besides Richardson and Wall, Those other obligees are not made parties plaintiffs in the declaration; nor is there any averment in the declaration that they are dead, so as to enable Richardson and Wall to sue as survivors. In actions ex contractu, the omission to join as plaintiffs in the writ and declaration all those that ought to be joined, (viz. all the obligees who are alive,) may be taken advantage of on the trial under the general issue. The con-0 0 tract and obligation were made to others besides Richardson and Wall. The words in the contract “to be paid to said Richardson and Wall,” do not restrict the legal force thé deed to those two only; but as the contract is made jointly with all the named obligees, all must join as plaintiffs the action. The plaintiffs could have averred in their declaration, who were justices at the date of the bond and have made them parties plaintiffs. And they could, and ought to have averred the death of any of the obligees, if any had died since the date of the bond, to enable the survivors to sue and maintain the action. The bond offered in evidence, was a different one from that described in the declaration, and it was properly rejected bythe Court. The judgment must be affirmed.

T In actions ex contracthe plaintiffs |a|e issue,

Per Curiam. Judgment below affirmed.