joinder of parties may, and very often does, involve joinder of causes of action. It is difficult to see why, when a question of multiple parties is raised, the question of multiple causes of action is to be disregarded. Indeed, it is the mere fact that multiple causes of action may arise out of the same transaction or series of transactions, and so raise common questions of law or fact, which now regulates the joinder of parties plaintiff or defendant.13 While thus recognizing the application of Section 258 in problems of joinder of parties, it would be unfortunate so to construe it as to make it restrictive of the new provisions regulating parties. Its ordinary application is in a suit by a single party against another. When a single plaintiff sues multiple defendants (as in Cowes v. Eidlitz), when multiple plaintiffs sue a single defendant, or when multiple plaintiffs sue multiple defendants, the joinder of parties sections govern instanter. Subdivision 9 of Section 258 may also apply. It is submitted that "the same transaction or transactions connected with the same subject of action" as there used must be taken to be exactly co-extensive with "the same transaction or series of transactions" as used in Section 209. So construed there is harmony between the joinder sections. The interpretation of the joinder of parties sections in Cowes v. Eidlitz seems to give effect to the design and purpose of modern attempts to simplify procedure. It recalls an apt observation that explains much of the disaster of code practice, "***mere change in text of the regulations governing practice can accomplish little unless the liberal spirit indicated thereby is adopted by the courts themselves."'14 S. David Stutson. Procedure: Joint tort-feasors: Rendering of several verdict by jury.-In Hall v. McClure, 112 Kan. 752 (1923), an action against joint tort-feasors, the jury returned the following verdict, "We, the jury, find for the plaintiff against the defendants and assess the amount of plaintiff's recovery*** at $4,000.00. Isadore Waldner, 13It is arguable, on the contrary, that where there are multiple parties on either or both sides whether or not multiple causes of action are joined is now unimportant. The contention is that the problem is one to be determined by reference to the parties provisions; it is not material to consider the question of causes of action, and so, sec. 258 is not applicable. In view of the fact that Rule 90 requires the separate statement and numbering of each cause of action joined in a complaint, and there is provision for the severance of actions at any time when the joinder is found to be embarrassing (C. P. A. sec. 96), it seems no good purpose is served by overlooking or obscuring the concurrent problem. And, if causes of action have been joined, why will not the rule purporting to regulate just that apply? In this connection it may be observed that the prohibition against the joinder of inconsistent causes of action, in sec. 258, when applied to cases where there are multiple defendants, may cause embarrassment unless a more liberal interpretation of "inconsistent" is employed by the courts than in the past. The old interpretation seems out of harmony with the idea of alternative liability provided for in the new sections on parties. A case like Gardner v. Ogden, 22 N. Y. 327 (1860), might now raise this difficulty. 14137 E. 66th St. v. Lawrence, supra n. 6, at p. 495. *** $3,500.00, and the city of Kansas City, Kansas, $500.00." The state supreme court, in a 5-3 decision, held that that part of the verdict after the figures "$4,000.00" had properly been treated as surplusage and affirmed a judgment of $4,000 against both of the defendants. In only a few cases have several verdicts, in actions against joint tort-feasors, been declared so irregular as to demand their return to the jury for correction.1 The courts have usually followed other lines of procedure. Where the jury returns a verdict of total damages and has then attempted a contribution, courts, as in the instant case, have treated the latter part of the verdict as surplusage and have entered udgment against all the defendants for the total damages. Conceding that the verdict is irregular, this practice is not open to criticism. In those cases where the jury fails to find total damages but merely assesses separate and several damages against each of the defendants, there are two possibilities. The plaintiff may enter a nolle prosequis against all but one of the defendants, and take a several judgment against him. Where the plaintiff fails to enter such a plea, courts generally have entered judgment against all the defendants for the highest damages found against any one of them.1 Where this is done the plaintiff is awarded the same damages as where he enters a nolle prosequi, since, where he enters such a plea, he naturally elects to take judgment against the defendant against whom the largest damages have been assessed, provided, of course, that defendant is solvent. The result is different, however, in that where a joint judgment is taken against all for the highest amount awarded against any, resort can be had to the other defendants in the event that one is insolvent. The practice of entering a judgment against all for the highest damages found against any one of the defendants seems to work an unwarranted hardship upon the plaintiff. A verdict in which no total damages but merely several damages against each of the defendants are given can only mean that the jury has first found the total damages and has then apportioned the total among the various defendants. To permit the plaintiff, then, to recover only the damages apportioned to one of the defendants obviously deprives him of that part of his recovery which has been apportioned to the remaining 1McCool v. Mahoney et. al., 54 Cal. 491 (1880); Everroad v. Gabbert, 83 Ind. 489 (1882); Fuller v. Chamberlain, 11 Metc. (Mass.) 503 (1846); Hill v. Goodchild, 5 Burr. (Eng.) 2790 (1771). "The Washington Market Co. v. Clagett, 19 App. Cas. (D. C.) 12 (1901); Lake Erie & W. R. Co. v. Halleck, 136 N. E. (Ind. Âpp.) 39 (1922); San Marcos Elec. Light and Power Co. v. Compton, 48 Texas Civ. App. 586 (1908); Pearson v. Arlington Dock Co., 111 Wash. 14 (1920). Holley v. Mix, 3 Wend (N. Y.) 350 (1829); Halsey v. Woodruff, 9 Pick. (Mass.) 555 (1830); Warren v. Westrup, 44 Minn. 237 (1890); Hardy v. Thomas, 23 Miss. 544 (1852); Mitchell v. Milbank, 6 T. R. (Eng.) 199 (1795); Salmon v. Smith, I Saund. (Eng.) 206. Buckley v. Smith, I Duer (N. Y.) 643 (1852); O'Shea v. Kirker, 4 Bosw. (N. Y.) 120 (1859); Halsey v. Woodruff, supra, n. 3. See, contra, Sabin v. Long, 1 Wils. (Eng.) 30 (1743). defendants. But to render a judgment against all for the total which the jury must have found, arriving at that total by adding the several verdicts, has been too startling and bold procedure for conservative judges to adopt. It has been suggested by Sedgwick that the practice is based upon a rule that, in actions against joint tort-feasors, damages are to be computed with reference to the amount which the most culpable of the defendants ought to pay, the argument being that the damages found against the most culpable of the defendants are the damages which the jury in fact assesses in rendering a regular verdict. It is claimed that, by giving judgment against all for the highest amount found against any one, the plaintiff is really recovering the same amount he would have recovered had a regular verdict been returned. The fallacy of this argument lies in the assumption that juries reach their verdicts by any such process. In the case under review, for example, after severing the damages as to each defendant, the jury fixed the total damage at the sum of the verdicts against each, clearly indicating that the jury was attempting contribution of the fixed total. The explanation advanced by Sedgwick seems unsatisfactory. There is, however, authority to the effect that a several judgment may be entered upon a several verdict. In at least three states this procedure has been followed,' and in one federal case the reviewing court found no grounds for reversal where the jury had assessed several damages. A considerable number of cases also hold that exemplary damages may be severed." The rendering of a several judgment upon a several verdict is open to three objections; (1) Since a satisfaction from one joint tort-feasor is a satisfaction as to all, the plaintiff would be able to recover from only one of the defendants and would thus be deprived of a part of his damages. (2) The plaintiff, in bringing a joint action, is entitled to a judgment against all of the defendants for the total damages sustained. (3) The jury would have insufficient evidence upon which to base contribution, since, in an action against joint tort-feasors the court, under the issues framed, is not concerned with the amount of participation of each defendant but only with the question did he participate? The court, in the South Carolina case of Rhame v. Sumter10 at $4Sedgwick on Damages (9th. ed.), sec. 1279. "See Hair v. Little, 28 Ala. 236 (1856); Clark v. Bales, 15 Ark. 452 (1855); Bell v. Morrison, 27 Miss. 68 (1854); Huddleston v. Borough of West Bellevue, III Pa. 110 (1855). "Ivey v. Cowart, 124 Ga. 159 (1905): Standard Oil Co. v. Doyle, 118 Ky. 662 (1904); Louisville & Nashville R. R. Co. v. Roth, 130 Ky. 759 (1908); Cincinnati, New Orleans and Texas Pacific Ry. Co. v. McElroy, 146 Ky. 668 (1912); White v. McNeily, I Bay (S. C.) 11 (1784); Boon v. Horn, 3 STROB. (S. C.) 159 (1848); Rhame v. City of Sumter, 113 S. C. 151 (1919). Hooks v. Vet, 192 Fed. 314 (1911). 'Davis v. Hearst, 160 Cal. 143 (1911); Nelson v. Halvorson, 117 Minn. 255 (1912); Mauk v. Brundage et. al., 68 Ohio 89 (1903); St. Louis S. Ry. Co. v. Thompson, 102 Texas 89 (1908). 10 Supra, n. 7, at p. 154. tempted to answer the first objection where, in entering a several judgment it was stipulated that, "The payment by one will not satisfy the judgment as to the other." Granting that courts have control over their judgments and can mould them to fit individual cases, this would seem a satisfactory solution. But a negative form of judgment in a law case is such a startling departure from precedent that it is not surprising that few courts have adopted this practice. The second objection, like the first, could undoubtedly be met by an appropriate form of judgment. That this is possible was demonstrated in the New York case of Varnum v. Hart11 where the court, in entering a judgment against joint tort-feasors, said, "*** and in case of failure to collect from either of the defendants the sum received by him [the sum received by each defendant was the damages assessed against him] with interest, and his just proportion of the costs, then an execution may be issued against all the defendants for the unpaid part of the judgment." Such a judgment wholly protects the plaintiff in the event of insolvency of one of the defendants. This, however, was an equity, not a law case, and the rendering of such judgments in equity was common. But in actions at common law split forms of judgment were never permitted. The question iswould such a judgment be permitted in a law case in a code jurisdiction. The court in the Hart case cited sec. 52112 of the Code of Civil Procedure, which would seem to authorize such a judgment even in a law action. This is a common code section. The first two objections present problems of form. The last objection, however, seems to present substantial difficulties. Treating a several verdict as irregular, evidence as to the participation of each defendant would be irrelevent. The defendants would make no effort to present such evidence since they could not expect the jury to return a several verdict. And while evidence on the point, during the course of the trial, might be presented collaterally, there would be no assurance that the jury would be presented with all the evidence which every defendant would wish to produce or which would be essential to a just basis for contribution. A several verdict could be considered as regular only in a code jurisdiction where legal and equitable jurisdictions have been consolidated and then only on the assumption that the equitable issue of contribution13 as between defendants had been submitted to the jury for an advisory verdict. To so blend legal and equitable issues, and make such a verdict possible, evidence bearing on the issue of contribution would, of necessity, be admissable, and notice of that fact in advance of trial should be given the parties. But this would greatly complicate the issues in which the plaintiff is interested, giving rise to a danger that the jury would be diverted from them to his prejudice. Courts from early times have recognized the limitations of the jury system and have endeavored, through well defined rules of pleading and pro116 N. Y. S. 346, 352 (1889). 12 Now sec. 264 of the Civil Practice Act. See also sec. 474 C. P. A. It is assumed in this discussion, in line with the more modern cases, that there may be contribution as between tort-feasors, where the tort does not involve malice. See 6 R. C. L. 1054–1056; 36 L. R. A. (N. S.) 583. cedure, to so clarify and separate the issues that the danger of confusing the jury would be minimized. It is doubtful if this principle can be safely disregarded under the liberal blending of legal and equitable issues of the codes. Where a several verdict against each follows a general one against all, the procedure adopted in the instant case seems the most satisfactory. But where no general sum is assessed against all the defendants, the better procedure would require either that the plaintiff take a nolle prosequi as to all but one, or that the court return the verdict for correction. W. D. Morgan Sales: Liability of manufacturer to consumer for breach of warranty in the sale of food.—Is a manufacturer of food products liable under an implied warranty to third persons who have no contractual relations with him? The Court of Appeals held not2 in Chysky v. Drake Bros. Co., 235 N. Y. 468 (1923). The plaintiff was employed in a restaurant. She was severely injured by a nail in a cake bought from the defendant by her employer. The complaint was framed on the theory of implied warranty. There was no allegation of negligence. The trial court dismissed the action as a matter of law. This was reversed by the Appellate Division of the First Department,3 and the case sent back for trial, where a verdict was returned for the plaintiff. The Appellate Division then affirmed without opinion.1 The Court of Appeals reversed on the ground that "unless there be privity of contract, there can be no implied warranty."5 Whether recovery could have been had in tort for negligence is expressly left open. It seems reasonably clear, however, that it could. It seems to be well settled that a manufacturer of food products owes a duty of care to ultimate consumers regardless of contract. The orthodox rule relating to manufacturers of articles generally' has, with the later decisions, yielded to this important exception and even further. The duty to respond for failure to use due care is, however, 'The question was expressly left open in Rinaldi v. Mohican Co., 225 N. Y. 70, 75 (1918). The court, however, cites Gearing v. Berkson, 223 Mass. 257 (1916), where it was answered in the negative. Hogan, J., dissenting. 3192 App. Div. (N. Y.) 186 (1920). 4200 App. Div. (N. Y.) 864 (1922). "At p. 472. "Salmon v. Libby, McNeil & Libby, 219 Ill. 421 (1905); Craft v. Parker Co., 96 Mich. 245 (1893); Tomlinson v. Armour & Co., 75 N. J. L. 748 (1908). "That the manufacturer owes no duty to one not in privity of contract with him. Huset v. Case Threshing Machine Co., 120 Fed. 865 (1903); McCaffery v. Mossberg Mfg. Co., 23 R. I. 381, (1901); collection of cases in 24 R. C. L. p. 512, n. 17. The rule arose from a misunderstanding of the decision in Winterbottom v. Wright, 10 M. & W. (Eng.) 109 (1842). See for excellent discussion, Bohlen, The Basis of Affirmative Obligations in the Law of Torts; II Lessors and Vendors of Real and Personal Property, 53 Am. L. Reg. 273, 281. Two exceptions to the rule are almost as old as the rule itself. The manufacturer is liable in spite of lack of privity of contract if he knows that the article is dangerous by reason of some concealed defect. Wellington v. Downer Oil Co., 104 Mass. 64 (1870); Kuelling v. Lean Mfg. Co., 183 N. Y. 78 (1905); |