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nants; e. g. first, a joint covenant with A. and B., and next a separate covenant with A. and with B., separately.
The rule as to covenantees may be illustrated by a comparison with the rule as to covenantors.
Covenantors may make themselves by the same covenant jointly as well as severally liable, but they cannot by the same covenant give the covenantees joint as well as several rights of action (s).
Thus, X. and Y. may covenant with A., so as to enable A. on the same covenant to sue either X. and Y. jointly, or X. or Y. separately. But X. cannot covenant with A. and B., so as to enable them to bring on the same covenant, at choice, either a joint action in the names of A. and B., or separate actions in the name of A. or of B.
The question which arises in most of the cases illustrating this rule, is not whether a covenant can be treated as at once joint and several, but whether a given covewant is to be considered as a joint covenant or a several covenant.
This question is one of “interpretation.” In interpreting a covenant, regard must be had partly to the legal interests of the covenantees, partly to the language employed. The general principles of interpretation, or of the construction to be put upon a contract have thus been summed up: “The construction of the contract
depends primarily on the language used, but is a question of intention to be determined by considering, not only the language, but also the interests and relations of the parties. A contract will be construed to be joint or
(8) Lush, Practice, 3rd ed., 222. Bradburn v. Botfield, 14 M. & W.573, per Parke, B. It is “fully established, I conceive, by [the] cases,” says Parke, B., “that one and the same covenant cannot be made both joint and several with the covenantees. It may be fit,” he adds, “ to observe that a part of Mr. Preston's explanation, that by express words, a covenant may be joint and several with the covenantors or covenantees, notwithstanding the interests are several, is inaccurately expressed. It is true only of the covenantors."
several according to the interests of the parties, if the words are capable of that construction, or even not inconsistent with it. If the words are ambiguous it will be joint, if the interests are joint, and it will be several if the interests be several. On the other hand, if the words are unmistakeably joint, then, although the interest be several, all the parties must be joined in the action; if the words are unmistakeably several, the action must be several, though the interest be joint "(t). The interpretation, therefore, of covenants or other contracts, is governed by the following rules :
1stly. Where the words of a covenant are unmistakeably Rules for joint or unmistakeably several; i.e., where no ambiguity is interpret
ing covepossible, the covenant will be taken to be joint or several nants. in each case, whatever be the interest of the parties; i.e., all that will be looked to will be the language of the covenant; it will be merely a question of construction (u).
2ndly. Whenever the words are ambiguous—i. e., capable of two constructions regard will be had to the legal interests of the covenantees. Where the interests are several, the covenant will be held to be several ; where joint, it will be held to be joint.
For, “it is impossible to say that the parties may not if they please use joint words so as to express a joint covenant, and thereby to exclude a several covenant, and that because a covenant may relate to several interests, it is therefore necessarily not to be construed as a joint covenant. If there be words capable of two constructions, we must look to the interest of the parties which they intended to express” (z).
“ The same covenant cannot be treated as joint or several at the option of the covenantee. If a covenant be so constructed as to be ambiguous,—that is, so as to
(1) Bullen, Pleadings, 3rd ed., 471, 472 ; Sorsbie v. Park, 12 M. & W. 154; Bradburn v. Botfield, 14 M. & W. 559.
(u) Keightley v. Watson, 3 Exch. 721, judgment of Pollock, C. B., and ibid., 723, judgment of Parke, B.
(z) Ibid., 723, per Parke, B.
What is a joint and what a several interest.
serve either the one view, or the other,-then it will be joint if the interest be joint, it will be several if the interest be several. On the other hand, if it be in its terms unmistakeably joint, then although the interest be several, all the parties must be joined in the action. So if the covenant be made clearly several, the action must be several, although the interest be joint” (a).
What is a joint and what a several interest ? The best answer (b) appears to be, that the interest of parties to a contract is joint where a breach of it to one is necessarily a breach of it to all; several, where a breach of it to one is not necessarily a breach of it to all.
If X. covenant with A. and B. to pay a certain sum of money to B. the interest is joint, for the act to be done is one act, and the omission to pay the money to B. is breach of contract to both the covenantees (e). So where there is a covenant with two persons to pay them one annuity the interest is joint, even though half the annuity is to be received by each. It would probably be otherwise if the covenant were to pay a separate annuity to each, in which case the interest would be several (d).
Where, on the other hand, it was agreed by a ship's. husband with the owners of the ship, that after her return a full account should be made of the said ship and her concerns, and the net profits be divided, after deducting all charges, it seems to have been held that each of the owners had a separate interest in the making out of the account by which his share was to be ascertained, before an actual division was made of the profits of the adventure (e).
(a) Keightley v. Watson, 3 Exch. 721, per Pollock, C. B., conf. Lane v. Drinkwater, 1 C. M. & R. 612.
(6) See for this answer, Lush, Practice, 3rd ed., 22.
(e) Owston v. Ogle, 13 East, 538, 540. Some writers of authority maintain that a covenant can be at once joint and several, not only as regards the covenantors, but also as regards the covenantees. On this view the question, whether a covenant is joint or several, or joint and
If, again, a person demises Blackacre to A. and Whiteacre to B., and covenants with them and each of them, that he is lawful owner of the said lands, their interests are separate (f).
RULE 15.—The right to bring an action on contract cannot be transferred or assigned (g).
Right to sue on contract not
Though the interest in a contract is constantly trans- assignable. ferred from one person to another, the right to sue upon a contract cannot be transferred, so as to enable the transferee or assignee of the interest in the contract to sue for a breach thereof in his own name. He must sue in the name of the assignor; or, if he be dead, in the name of his executor or administrator (h),
A debt is due from X. to A. A. cannot transfer
several, as regards the covenantees, is wholly a question of construction, i.e., of the words of the covenant. This view of the law is thus stated,
“If there be two or more covenantors, or two or more covenantees, the covenant may either be joint or several, or both joint and several. Thus, if there be two covenantors, they may bind themselves jointly, or may bind themselves severally, or may bind themselves both jointly and severally. And if there be two or more covenantees, the covenant may be entered into with them jointly or with them severally, or in both ways. When, however, a covenant is entered into with two or more, and with each of them, it will not be considered joint and several unless distinctly expressed as such by the deed itself; but will be deemed joint or several according as the interest of the covenantees in the subject matter is joint or several.” Davidson's Precedents, 3rd ed., 109.
The view taken in the text is that of various writers of reputation, e.g., Bullen, Pleadings, 3rd ed., 471, and Lush, Practice, 3rd ed., 22. The apparent difference of view is possibly merely a difference of language. The covenant which one writer would call a joint and several covenant would, perhaps, be termed by another two separate covenants. It is admitted on both sides that covenants are, as a rule, either joint or several, and not as regards the covenantees both joint and several.
(f) Anderson v. Martindale, 1 East, 501.
(9) This is merely an application to actions ex contractu of the general principle, that the right to bring an action cannot be transferred. See Rule 6.
(h) Chit., Pleading, 7th ed., 17.
the debt to B. so as to enable B. to sue for it in B.'s name (i) ().
It is at once a result and illustration of this rule, that no arrangement between the parties to a contract can give anyone a right to sue for its breach who would not independently of the arrangement have any legal right to sue (1). It is, however, possible for the several parties to a contract to agree among themselves that actions for breach of the contract shall be brought in the name of one of them only. With reference to an agreement of this kind, it has been laid down as follows :-“We think that the members of a firm cannot by agreement give an authority to any one of them to bring an action in his name against persons not members of the firm. But where several parties create by agreement penalties to be paid by one of them to the others, we see no objection to their empowering one to sue for the others. Such an agreement is in effect undertaking not to object on account of all who ought otherwise to have been joined in the action not being joined ” (m).
Where two persons have a joint right of action, e.g., where A. and B. have a right of action against X., one cannot assign to the other his share in the right of action so as to enable such assignee to sue alone. Where X. covenanted with A. and B. it was held, that B. could not by resigning his rights to A. enable A. to sue alone for a breach of covenant (n).
“ The liability to be sued jointly by the two covenantees
might perhaps be sufficient to sustain the present action, if it were not for the rule . . .. which prohibits the assignment of the right to enforce such a lia
(i) Jones v. Carter, 15 L. J. 96, Q. B. ; 8 Q. B. 134. See further, p. 46, 47, ante, as to the effect of assignment on the right of set-off.
(k) But see as to assignment of a debt by agreement between the assignor, debtor, and assignee, p. 117, post.
(l) Hybart v. Parker, 4 C. B., N. S., 209 ; 27 L. J. 120, C. P.