of one made in the course of partnership business.135 So a partLer is liable to third persons for injuries occasioned by negligence, if committed in the course of the partnership business.138 In suit to take an account and dissolve a mining partnership, all those owning interests are necessary parties defendant.137 A partner may be sued at law by his copartner or one who has been such, where the balance has been ascertained by the act of all the partners, and agreed to as constituting such balance.138 140 § 51. Actions against principal and agent.-A principal though himself innocent, is liable for fraud or misconduct of the agent acting within the scope of his authority,139 but not in matters beyond that scope.1 But where the agent makes a contract on behalf of his principal in excess of his authority, he is liable thereon under an implied warranty of authority, even though he makes no false representations concerning his authority.141 And where the principal is known, he alone is liable.142 But an agent may render himself personally liable by not disclosing the name of his principal,143 though that does not release the principal in the absence of fraud.144 If on the face of an instrument not under seal, executed by an agent with competent authority, by signing his own name simply, it appears that the agent executed it in behalf of the principal, the principal and not the agent is bound.14 Where a party makes a 135 Griswold v. Haven, 25 N. Y. 595, 82 Am. Dec. 380. 136 Cotter v. Bettner, 1 Bosw. 490; Whittaker v. Collins, 34 Minn. 299, 57 Am. Rep. 55, 25 N. W. 632; Hess v. Lowry, 122 Ind. 225, 17 Am. St. Rep. 355, 23 N. E. 150, 7 L. R. A. 90. 137 Settembre v. Putnam, 30 Cal. 490. 138 Ross v. Cornell, 45 Cal. 133; Hoff v. Rogers, 67 Miss. 208, 19 Am. St. Rep. 301, 7 South. 358; Newby v. Harrell, 99 N. C. 149, 6 Am. St. Rep. 503, 5 S. E. 284. As to partnerships, general and special, the powers and authority of partners, their mutual obligations and liability, etc., see Cal. Civ. Code, §§ 2424-2520. 139 Dwinelle v. Henriquez, 1 Cal. 392; Adams v. Cole, 1 Daly, 147; Hunter v. Hudson River Iron etc. Co., 20 Barb. 493; Thomas v. Winchester, 145 6 N. Y. 397, 57 Am. Dec. 455; Smith v. Reynolds, 8 Hun, 128; Du Sonchet v. Dutcher, 113 Ind. 249, 15 N. E. 459; Reynolds v. Witte, 13 S. C. 5, 36 Am. Rep. 678. 140 New York Life Ins. etc. Co. v. Beebe, 7 N. Y. 364. See, also, Mechanies' Bank v. New York etc. R. R. Co., 13 N. Y. 599, 4 Duer, 570; Marsh v. South Carolina R. R. Co., 56 Ga. 274. 141 Anderson v. Adams, 43 Or. 621, 74 Pac. 215. 142 Conro v. Fort Henry Iron Co., 12 Barb. 27. 143 Nason v. Cockroft, 3 Duer, 366; Cabre v. Sturges, 1 Hilt. 160; Blakeman v. Mackay, 1 Hilt. 266. 144 Jones v. Western Mfg. Co., 32 Wash. 375, 73 Pac. 359. 145 Haskell v. Cornish, 13 Cal. 45; affirmed in Shaver v. Ocean Mining purchase from an innocent agent, who afterwards parts with the money of his principal, and the purchase avails the purchaser nothing, no legal right of complaint will lie against the agent.148 The principal and agent are jointly liable for an injury caused by negligence of the agent.147 § 52. Actions for trespass.-Generally a trespass committed by several persons acting together creates a several liability; but if the trespass is joint, all the trespassers may be joined.148 A justice of the peace who issues an execution commanding the arrest of the judgment debtor, and the attorney who procures the execution to be issued, in a case in which both know that the law prohibits an arrest in such action, are jointly liable to the debtor in trespass.149 Trespass lies against a municipal corporation.150 152 53. Actions against trustees. In an action to carry out a trust-deed, or against a trustee, for breach of trust, all the cestuis que trust are necessary parties,151 but not in an action to set aside a trust-deed.1 A party not a trustee may be joined or not, at the option of the plaintiff.153 In an action by one of several cestuis que trust to declare and enforce an implied trust. all who claim to be entitled to a portion of the trust estate are proper parties defendant.154 Generally, where there is more than one cestui que trust and one is joined, all should be joined as Co., 21 Cal. 45; Hall v. Crandall, 29 146 Engels v. Heatly, 5 Cal. 136. 147 Phelps v. Wait, 30 N. Y. 78. See Malone v. Morton, 84 Mo. 436; Berghoff v. McDonald, 87 Ind. 549; Martin v. Benoist, 20 Mo. App. 262; Cal. Civ. Code, § 2338; and generally in relation to agency, see tit. 9, Cal. Civ. Code. 148 Sumner v. Tileston, 4 Pick. 308; Creed v. Hartman, 29 N. Y. 591, 86 Am. Dec. 341; Kasson v. People, 44 Barb. 347; Woodbridge v. Cannor, 49 Me. 353, 77 Am. Dec. 263. That they may be sued jointly, see King v. Orser, 4 Duer, 431; Waterbury v. Westervelt, 9 N. Y. 598; Herring v. Hoppock, 3 Duer, 20; Marsh V. 149 Sullivan v. Jones, 2 Gray, 570. 150 Allen v. City of Decatur, 23 Ill. 332, 76 Am. Dec. 692; Frederick v. Lansdale Borough, 156 Pa. St. 613, 27 Atl. 563. 151 Colgrove v. Tallmadge, 6 Bosw. 289; Bishop v. Houghton, 1 E. D. Smith, 566; Bank of British N. A. v. Suydam, 6 How. Pr. 379; Johnson v. Snyder, 8 How. Pr. 498. 152 Russell v. Lasher, 4 Barb. 232; Wheeler v. Wheedon, 9 How. Pr. 293; Scudder v. Voorhis, 5 Sandf. 271. See, also, Wallace v. Eaton, 5 How. Pr. 99. 153 Bateman v. Margerison, 6 Hare, 499. 154 Jenkins v. Frink, 30 Cal. 586, 89 Am. Dec. 134; West v. Randall, 2 parties.155 But a cestui que trust who has transferred his interest need not be joined.156 But when such share is ascertained, each claimant may sue alone;157 or for breach of trust.158 Persons holding funds, and who have always dealt with them as if they were trust-funds, are liable for losses occasioned by improper investments, though they did not in fact know who the cestui que trust were.' So where A. was indebted to plaintiff, and conveyed his property to B., to be disposed of for his benefit, and had drawn an order in favor of plaintiff on B., who had accepted it, and B. subsequently conveyed a portion of the property to A., without consideration, it was held that A. was a proper and necessary party to the action. 160 159 § 54. Persons severally liable on same obligation or instrument.-Persons severally liable upon the same obligation or instrument, including the parties to bills of exchange and promissory notes, and sureties on the same and separate instruments, may all or any of them be included in the same action at the option of the plaintiff.161 This section applies only to written obligations.162 It applies to bonds, as well as bills of exchange and promissory notes,163 and to cases of joint and several contracts.1 164 In Oregon, the sureties on an execution bond cannot be sued until after default in the probate court.165 Persons jointly and severally liable may be sued together or separately, at the option of the plaintiff.16 But in actions on Mason, 181, Fed. Cas. No. 17424; Armstrong v. Lear, 8 Pet. 52, 8 L. Ed. 863; General Mutual Ins. Co. v. Benson, 5 Duer, 168. 155 First Nat. Ins. Co. v. Salisbury, 130 Mass. 305; Railway Co. v. Alling, 99 U. S. 463, 25 L. Ed. 438. 156 Eldredge v. Putnam, 46 Wis. 205, 50 N. W. 595. 157 Smith v. Snow, 3 Madd. 10. 158 Perry v. Knott, 5 Beav. 293. 159 Ex parte Norris, L. R., 4 Ch. 280. 160 Lucas v. Payne, 7 Cal. 92; Shaver v. Brainard, 29 Barb. 25. 161 Cal. Code Civ. Proc., § 383. See London etc. Bank v. Smith, 101 Cal. 415, 35 Pac. 1027; Powell v. Powell, 48 Cal. 235; Wibaux v. Life Stock Co., 9 Mont. 154, 22 Pac. 492. P. P. F. Vol. I-4 162 Spencer v. Wheelock, 11 N. Y. Leg. Obs. 329; Tibbits v. Percy, 24 Barb. 39. 163 People v. Hartley, 21 Cal. 585, 82 Am. Dec. 758; People v. Love, 25 Cal. 530; Brainard v. Jones, 11 How. Pr. 569. As to when the holders of bonds issued by a county should be made parties defendant in suit against the county, see Hutchinson v. Burr, 12 Cal. 103; Patterson v. Supervisors of Yuba County, 12 Cal. 106. 164 Humphreys v. Crane, 5 Cal. 173; Stearns v. Aguirre, 6 Cal. 176. 165 Hamlin v. Kennedy, 2 Or. 91; Laws of Or., 1866, p. 55. 166 Enys v. Donnithorne, 2 Burr. 1190; Eccleston v. Clipsham, 1 Saund. 153; Alfred v. Watkins, 1 Code Rep. 343; Kelsey v. Bradbury, 21 Barb. joint and several obligations, an administrator cannot be joined with the survivor, because against one the judgment would be do bonis testatoris, and against the other de bonis propriis.167 To create a several liability, express words are necessary.1 168 In New York, it seems the plaintiff may sue one or all of the obligors of a joint and several bond; but in strictness of law, he cannot sue an intermediate number.169 The practice is, however, different in California, where one or all of any intermediate number may be made defendants, at the option of the plaintiff.170 So, also, in cases of a promissory note, and mortgage to secure the same.171 Although the several parties to a bill or note may be sued in one action, yet their being so sued does not make them jointly liable,172 or joint debtors. 173 The common-law rule, that where defendants are sued on a joint contract, recovery must be had against all or none is modified by the code.17 But one of two joint debtors, not served with process, is not a proper party defendant in an action upon the judgment against the party on whom service of process was made.175 So, where joint, debtors reside in different states, they may be sued separately." It seems that different parties, liable for the same sum, but under different contracts, cannot be joined in the same action. So held in New York, as to a guaranty written under a promissory note. 178 And that the guarantor cannot be sued in the same 531; Parker v. Jackson, 16 Barb. 33; Brainard v. Jones, 11 How. Pr. 569; De Ridder v. Schermerhorn, 10 Barb. 638; Kurtz v. Forquer, 94 Cal. 91, 29 Pac. 413; Hurlbutt v. N. W. Spaulding Saw Co., 93 Cal. 55, 28 Pac. 795; Lux v. McLeod, 19 Colo. 465, 36 Pac. 246. 167 May v. Hanson, 6 Cal. 642. 168 Brady v. Reynolds, 13 Cal. 31. 169 Leroy v. Shaw, 2 Duer, 626; Carman v. Plass, 23 N. Y. 286; Minor v. Mechanics' Bank of Alexandria, 1 Pet. 46, 7 L. Ed. 47; Amis v. Smith, 16 Pet. 303, lu L. Ed. 973; Brainard v. Jones, 11 How. Pr. 569; Loomis v. Brown, 16 Barb. 325; Phalen v. Dingee, 4 E. D. Smith 379; Allen v. Fosgate, 11 How. Pr. 218. 170 Lewis v. Clarkin, 18 Cal. 400. See, also, People v. Love, 25 Cal. 520; Code Civ. Proc., § 383. 177 176 171 Eastman v. Turman, 24 Cal. 379. 172 Alfred v. Watkins, 1 Code Rep. (N. S.) 343. 178 Kelsey v. Bradbury, 21 Barb. 531; Farmers' Bank v. Blair, 44 Barb. 642. 174 Cal. Code Civ. Proc., § 989; People v. Frisbee, 18 Cal. 402; Lewis v. Clarkin, 18 Cal. 399. 175 Tay v. Hawley, 39 Cal. 93. 176 Brown v. Birdsall, 29 Barb. 549. 177 Allen v. Fosgate, 11 How. Pr. 218; Glen Cove Mut. Ins. Co. v. Harrold, 20 Barb. 298; De Ridder v. Schermerhorn, 10 Barb. 638. See, also, Brown v. Curtiss, 2 N. Y. 225; Barker v. Cassidy, 16 Barb. 177; White v. Low, 7 Barb. 204. 178 Brewster v. Silence, 8 N. Y. 207; affirming S. C., 11 Barb. 144; Kelsey v. Bradbury, 21 Barb. 531; action with the maker.179 It was there held, also, that the liability of a purchaser and his guarantor is several.180 So, also, of a lessee and his surety.181 § 55. On judgment.-And in case of verdict against two defendants in an action ex delicto, the court may set aside the action and dismiss as to one and render judgment against the other, each defendant being severally liable for the whole damage. 182 If two different mining and reduction works pollute the waters of a creek each one is liable for the damage it does, and not for what the other does, regardless of the difficulty in determining the amount." 183 § 56. Joinder of parties not bound.-Where a mining company and its manager are both sued as principal for damages for breach of contract, the company has no ground to complain because the manager, who is not bound, is made a party to the suit, if in fact the company is bound by the contract.184 § 57. Joinder of corporation. In an action by a stockholder seeking relief against directors who are improperly diverting the funds of the corporation, it is not necessary to join as parties directors whose acts are not complained of, but it is necessary that the corporation should be joined, as the action, though in the name of the plaintiff, is in reality in behalf of the corporation;185 nor need it make all of the alleged wrongdoers. defendants.188 In recovery from stockholders upon a judgment previously obtained against the corporation, it is an equitable proceeding, and all the stockholders within the jurisdiction must be made parties, to the end that all the debts of the corporation may be adjudged and assessments made sufficient to satisfy such Alfred v. Watkins, 1 Code Rep. (N. 179 Allen v. Fosgate, 11 How. Pr. 218. 180 Leroy v. Shaw, 2 Duer, 526; Spencer v. Wheelock, 11 Leg. Obs. 329. But see Cal. Code Civ. Proc., § 383, and Civ. Code, title "Negotiable Instruments." 181 Phalen v. Dingee, 4 E. D. Smith 379. 182 Birkel v. Chandler, 26 Wash. 241, 66 Pac. 406. 183 Watson v. Colusa-Parrott Min. Co., 31 Mont. 513, 79 Pac. 14. 184 Ruffatti v. Societe Lexington Min. Co., 10 Utah, 386, 37 Pac. 591. 185 Wickersham v. Crittenden, 93 Cal. 17, 28 Pac. 788. 186 Morrison v. Blue Star Nav. Co., 26 Wash. 541, 67 Pac. 244. |