#### Midland Terra Cotta Company, Appellant, vs. Illinois-Surety Company, imp., Respondent.

*April 12*

May *2, 1916.*

*Pleading: Joinder: Causes of action must affect all parties.*

1. Sec. 2647, Stats. 1913, as amended by cli. 219, Laws 1915, still requires that all causes of action united in a complaint must affect all of the parties to the action.

2. Thus, a cause of action against a building contractor for the- - amount due for materials purchased and against the owner on his express promise to pay therefor if plaintiff would forego a lien, could not properly be joined with a cause of action for the same debt against the contractor and against a surety company which was liable therefor on the contractor’s bond.

Appeal from an order of tbe circuit court for Milwaukee county: E. 0. Eschweileb, Circuit Judge.

*Affirmed.*

Action for tbe' purchase price of material sold and delivered to J. W. Utley, tbe principal contractor for tbe construction of a building owned by tbe Edward Schuster & Co. Inc. Tbe *Illinois Surety Company*is joined as a defendant because it indemnified tbe Edward Schuster & Co. Inc. by a bond against any failure of tbe contractor to duly perform bis contract, which bond contains this provision:

“Tbe condition of this bond is such that if tbe principal' shall faithfully perform tbe contract on bis part, and satisfy all' claims and demands incurred for the same, and shall fully indemnify and save harmless tbe owner from all cost and damage which he may suffer by reason of failure to do 'So, and. *191shall fully reimburse and repay tbe owner all outlay and expense wbicb the owner may incur in making good default, then this obligation shall be null and void; otherwise it shall remain in full force and effect.”

Two causes of action are set out in the complaint, on« .against TJtley upon his contract of purchase, and against the Edward Schuster & Co. Inc. upon its express agreement with plaintiff to pay for the material furnished if plaintiff would forbear to file a mechanic’s lien against the premises, which it forbore to do relying upon such agreement; the other, against Utley upon the same contract of purchase and against the *Illinois Surety Company*upon its liability on the bond.

The *Illinois Surety Company*demurred to the complaint on the ground that several causes of action have been improperly united therein for the reason that the causes of action stated in the complaint do not affect all the parties to the .action. The court sustained the demurrer and the plaintiff .appealed.

*G. J. Davelaar,*for the appellant,

cited secs. 2603, 2610, .2647, *265Qa,*2883, Stats. 1915; *Gager v. Marsden,*101 Wis. .598, 605, 606, 77 N. W. 922; *Kolloch v. Scribner,*98 Wis. 104, 113, 73 N. W. 776; *Herman v. Felthousen,*114 Wis. ■423, 90 N. W. 432; *Warren Webster & Co. v. Beaumont H. Do.*151 Wis. 1, 138 N. W. 102; *Ilausmann Bros. Mfg. Co. v. Kempfert,*93 Wis. 587, 67 N. W. 1136; *St. Croix T. Co. v. ■Joseph,*142 Wis. 55, 124 N. .W. 1049; *O’Malley v. Miller,*.148 Wis. 393, 134 N. W. 840; *Ilemenway v. Beecher,*139 Wis. 399, 401, 402, 121 N. W. 150; *McDougald v. Neiv Richmond R. M. Co.*125 Wis. 121, 103 N. W. 244; *State ex rel. Mengel v. Steber,*154 Wis. 505, 143 N. W. 156.

Eor the respondent there was a brief by *Flanders, Bottum, Fato sett & Bottum,*and oral argument by *R. N. Van Doren*.and *Arnold C. Otto.*

ViNje, J.

In the case of *Concrete S. Co. v. Illinois S. Co., ante,*p. 41, 157 N. W. 543, it was held that the *Illinois ■Surety Company*was directly liable to a subcontractor under *192tbe provisions of its bond set out in the statement of facts. The defendant Edward Schuster & Oo. Inc. is liable upon its express promise to pay, given as a consideration for plaintiff’s forbearance to perfect a mechanic’s lien. The defendant Utley is liable upon both causes of action set out in the complaint, for they are both based upon the same facts, namely, that he purchased and agreed to pay for the materials. We have, therefore, this situation: One defendant is liable on both causes of action, each of the other two defendants is liable upon a separate cause of action from the other, and is in no way related to or affected by the cause of action pleaded against its codefendant. The Edward Schuster & Oo. Inc. is not a party to nor affected by the provision in the bond that renders the *Illinois Surely Company*liable to the plaintiff, and the *Illinois Surety Company*in turn is not a party to nor affected by the promise of Edward Schuster & Oo. Inc. to pay plaintiff for the material if it would forbear to file a lien. Both these defendants are sued upon an independent promise individual to itself. The fact that it is for the same debt makes no difference. The statutory test is not whether the causes of action pleaded arise out of the same transaction, but whether they affect all the parties to the action. Plaintiff may have two recoveries, but it can have only one satisfaction.

Séc. 2647, Stats. 1913, as amended by ch. 219, Laws 1915, still requires that all causes of actions united in a complaint must affect all the parties to the action. This complaint violates that section, in that the cause of action set out against the *Illinois Surety Company*does not affect the Edward Schuster *&*Co. Inc. and in that the cause of action against the latter does not affect the former. The cases cited by plaintiff do not touch the precise question at issue. They relate generally to the subject of who are necessary or proper parties to an action. The requirement that the causes of action which may be united in a complaint must affect all the parties to the action is as imperative now as it has been ever since-*193sec. 2647 was first enacted. Our court bas uniformly field tfiat causes of action founded upon different rigfits of recovery cannot properly be united unless all tfie parties to tfie action are affected by eacfi cause pleaded. *Greene v. Nunnemacher,*36 Wis. 50; *Hoffman v. Wheelock,*62 Wis. 434, 22 N. W. 713, 716; *Hughes v. Hunner,*91 Wis. 116, 64 N. W. 887; *Blakely v. Smock,*96 Wis. 611, 71 N. W. 1052; *Hawarden v. Youghiogheny & L. C. Co.*111 Wis. 545, 87 N. W. 472; *Tyre v. Krug,*159 Wis. 39, 149 N. W. 718.

*By the Gourt.*— Order affirmed.