PART II. Liability of third party. Indenture inter partes. Composition deed. : Although a person cannot be charged with any liability upon a contract to which he is not a party, he is bound so far to respect the rights of the parties that he may become liable to an action for an injurious interference with the contractual relations created between them as for enticing away and harbouring another person's wife ("); or for enticing away, harbouring, or seducing a servant or apprentice (o); or for inducing a person to break a contract of special personal service to another; as an engagement of a professional singer (p), or an engagement for exclusive service in a special manufacture (1). In an indenture or deed made inter partes, the formal statement of the parties by name or description impliedly excludes any other parties; and those persons only who are so named or described can acquire a right or incur a liability, or can sue or be sued under the deed (). In an indenture of lease at common law a person not named as a party could not sue upon the covenants, though expressly made to him (s); nor could such person join with parties in suing upon the covenants, though expressly made to all of them jointly (t). -Where a composition deed described the parties of the one part as "the several persons whose names and seals are subscribed and affixed in the schedule hereunder written, being creditors executing these presents," it was held that creditors who did not execute the deed were not parties and could not sue upon the covenants, though they were expressed to be made with all the creditors; and consequently the deed was not valid in bankruptcy against non-executing creditors, who were not upon equality with the others ("). But where such deed is expressly made with "all the creditors," or in terms including all creditors as parties, it is so far valid that all the creditors can sue upon the covenants (r).— (n) Winsmore v. Greenbank, Willes, 577; see Philp v. Squire, Peake, 115; see 20 & 21 Vict. c. 85, s. 59. (0) Eager v. Grimwood, 1 Ex. 64; 16 L. J. Ex. 236; Evans v. Walton, L. R. 2 C. P. 615; 36 L. J. C. P. 307; see Sykes v. Dixon, 9 A. & E. 696; 8 L. J. Q. B. 102. (p) Lumley v. Gye, 2 E. & B. 216; 22 L. J. Q. B. 463. (9) Bowen v. Hall, 6 Q. B. D. 333; 50 L. J. Q. B. 305. (r) Co. Lit. 231 a; per cur. Storer v. Gordon, 3 M. & S. 322; Chesterfield Colliery v. Hawkins, 3 H. & C. 677; 34 L. J. Ex. 121; Ex p. Piercy, L. R. 9 Ch. 33; 43 L. J. B. 9. (8) Berkeley v. Hardy, 5 B. & C. 355. (t) Southampton v. Brown, 6 B. & C. 718. (u) Benham v. Broadhurst, 3 H. & C. 472; 34 L. J. Ex. 61; Chesterfield Colliery v. Hawkins, supra; Gurrin v. Kopera, 3 H. & C. 694; 34 L. J. Ex. 128. And see Wood v. Slack, L. R. 3 Q. B. 379. (x) M'Laren v. Baxter, L. R. 2 C. P. 559; 36 L. J. C. P. 247; Isaacs v. Green, L. R. 2 Ex. 352; 36 L. J. Ex. 253; see Ex p. Milne, 22 Q. B. D. 685 ; 58 L. J. Q. B. 333. An exception was made to the above rule by the Act to amend the CH. I. law of real property (8 & 9 Vict. c. 106) enacting, sect. 5, "that Covenants under an indenture, executed after the 1st October, 1845, an respecting realty. immediate estate or interest in any tenements or hereditaments, and the benefit of a condition or covenant respecting any tenements or hereditaments may be taken, although the taker thereof be not named a party to the same indenture." But he must be a person existent at the time and capable of taking the benefit (y). Where a covenant is made in the form of a deed poll, which does Deed poll. not contain any formal statement of parties, the covenantee appears as a party merely from the name or description of him in the covenant; and it is sufficient if he is ascertained in that manner (). Policies of insurance are commonly made in the form of a deed poll, in which the insurers covenant to pay the loss to the insured without specifying the covenantee by name; and the persons in fact interested in the insurance and on behalf of whom it is made are entitled to sue upon the covenant (a). But in the case of a deed poll, as with an indenture, the covenantee or obligee, accepting the contract, must take it subject to all the conditions and provisoes expressed in the deed respecting it (b). contract inter partes. A simple contract in writing expressed to be made inter partes Simple also presumptively excludes other parties than those named or described as such; and parol evidence is not in general admissible to alter the effect of the written instrument (c). But with simple contracts, whether in writing or not, except bills of exchange and promissory notes, if the actual parties are agents for others whose names do not appear, extrinsic evidence is admissible in order to entitle the principal to the benefit of the contract on the one hand, or to charge him with the liability on the other (d). and identifi The parties to a deed or other written contract may be designated Designation by their proper names; or by the name of a firm or of a company, cation of or of a class, or by other sufficient description, and it is then a parties. question of fact to identify the person by the description (e). As (y) Jessel, M. R., Kelsey v. Dodd, 52 L. J. C. 39. (2) See ante, p. 93. (a) Sunderland Marine Ins. v. Kearney, 16 Q. B. 925; 20 L. J. Q. B. 417; see Great Britain Steamship Ins. v. Wyllie, 22 Q. B. D. 710; 58 L. J. Q. B. 614; Ocean Ins. v. Leslie, 22 Q. B. D. 722. (b) Macdonald v. Law Union Ins., L. R. 9 Q. B. 328; 43 L. J. Q. B. 131; ante, (c) Robinson v. Rudkins, 26 L. J. Ex. (d) Beckham v. Drake, 11 M. & W. 315; 12 L. J. Ex. 486; and see S. C., 2 H. L. C. 579; 9 E. R. 1213; see post, Pt. II., Chap. II., Sect. II. (e) See ante, p. 138. PART II. in a deed purporting to be made with a corporation, which in fact consists of one or more persons carrying on business under that name (f); or a contract made with "the C. Rifle Corps," consisting of all the members of a company of volunteers (g). So where a person uses the name of a nominal partner, or where he trades in the name of himself and son (); or where two or more persons use the name of one of them (i); it becomes a question of fact who is the person described in the contract. The same person may trade under two different names, and he is then equally chargeable with contracts made under each; and there can be no preference against his assets between them (k).—A person may be bound by a contract made in a mistaken or assumed name; and may be charged with it in an action upon sufficient allegation and proof of identity (/). Where a person purchased shares in a company and executed the transfer deed and registered the shares in an assumed name, he was held to be the contracting party and liable to be placed upon the list of contributories in his own name (); but not in a case where the purchaser of the shares used another person's name with the intention of vesting the shares in that person (). The parties to a contract may be sufficiently described as "the creditors" of a person (o); or as "the executors" of a person; and then all the executors who prove become parties (p). In a contract of sale the vendors may be sufficiently described within the Statute of Frauds as "the proprietors " of the property sold, because they may be identified by that description (q); or as "the trustee under a trust for sale" ("); but the description of "vendors" was held not to be a sufficient description, because it left it quite open to parol evidence to show who was the party selling ($). In an ordinary policy of marine insurance the parties are described as "the assured," meaning the persons interested in the named ship (t). CH. I. Several persons may join as party to a contract on the one part Joint parties. or on the other; that is to say, in respect of the same debt or liability several persons may join in the character of debtor, or in the character of creditor. In such cases the persons who are jointly party to the contract, whether as joint debtors or as joint creditors, though they may have several interests relatively to one another, are united in interest relatively to the other party." Where Joint debtors. several persons make a joint contract, each is liable for the whole, although the contract be joint." For if one of the joint contractors be charged separately in an action, whether upon a joint bond or covenant or upon a simple contract, he cannot say that the bond was not his deed, nor that he did not promise; consequently "proof of the joint contract is sufficient to sustain the allegation that one contracted, and therefore there is no variance" (u). So where several of joint contractors are sued jointly omitting others; and accordingly, "if the obligee proceed upon a joint bond, there is no difference between suing two only of three joint obligors, and one only of two joint obligors" (c). And an action on a bill of exchange against three defendants charging them as acceptors is supported by proof of a bill drawn upon and accepted by them jointly with another person (y). debtor. But "it is the right of persons jointly liable to pay a debt to Non-joinder insist upon being sued together" (-). At common law if one of of joint joint contractors was sued alone he might plead in abatement of the writ the non-joinder of the other parties jointly liable with him. This was the only mode of taking the objection, and by pleading to the merits of the action the objection of non-joinder was waived (a). -Now under the Judicature Acts, by the joint effect of Order XXI. r. 20, and Order XVI. r. 11, no objection can be taken by way of plea in abatement, but the names of improper parties may be struck out, and of necessary parties added, by way of amendment. (s) Potter v. Duffield, L. R. 18 Eq. 4; 43 L. J. C. 472. (t) Great Britain Steamship Ass. v. Wyllie, 22 Q. B. D. 710; 58 L. J. Q. B. 614. (u) Abbott, J., Richards v. Heather, 1 B. & Ald. 35; per cur. King v. Hoare, 13 M. & W. 505; 14 L. J. Ex. 29. (x) Cabell v. Vaughan, 1 Wms. Saund. 475, n. (4). (y) Mountstephen v. Brooke, 1 B. & Ald. 224. (z) Cairns, L. C., Kendall v. Hamilton, 461. PART II. A defendant has now the same right to have an alleged joint contractor joined as he had at common law under a plea in abatement (g). The judgment and writ of execution charge all the against joint defendants jointly, and the whole amount may be levied against Execution contractor. Surviving liability upon death of joint debtor. Liability of survivor in equity. one separately; consequently each joint contractor becomes ultimately liable to the creditor for the whole, and not only for his proportionate part, though the contract be joint (). But he is presumptively entitled to contribution from the joint contractors, and therefore it is material for him to have them joined in the same action and bound by the same judgment (i). Upon this principle joint shareholders in a company, upon a winding up, become liable as contributories, each for the whole amount of calls, and not proportionally according to their number; though they may be liable for contribution inter se (u). Upon the death of one of several joint contractors, the legal liability under the contract devolves on the survivors; and the representative of the deceased cannot be sued at law either alone or jointly with the survivors. Consequently the whole legal liability ultimately devolves upon the last surviving contractor, and after his death upon his representatives (r). So the liability of joint shareholders in a company upon the death of one survives to the other; and the representative of the deceased cannot be charged (y). And upon this principle a release made to the executor of a deceased joint obligor is inoperative, because upon his death the debt survived against the others ().-The liability in equity presumptively follows the legal form of the contract in this respect, and devolves exclusively upon the survivors or survivor; for "where the obligation exists only by virtue of the contract, its extent can be measured only by the words in which it is conceived" (a). But there may be equitable grounds for treating the liability as several as well as joint, and for holding the estate of the deceased contractor liable; as where the intention of the (x) Richards v. Heather, 1 B. & Ald. 29; Calder v. Rutherford, 3 B. & B. 302. (y) Hill's case, L. R. 20 Eq. 585; 44 L. J. C. 423. (z) Ashbee v. Pidduck, 1 M. & W. 564; 5 L. J. Ex. 251. (a) Sumner v. Powell, 2 Mer. 30; T. & R. 423; Rawstone v. Parr, 3 Russ. 539; Wilmer v. Currey, 2 De G. & Sm. 347; Richardson v. Horton, 6 Beav. 185; 12 L. J. C. 333; Kendall v. Hamilton, 4 Ap. Ca. 504; 48 L. J. Q. B. 705. |