No. 2,445.

#### J. MORA MOSS, Respondent, *v.*JOHN L. WILSON, *et al.*Appellants.

Contract. — Sevekal Obktgation. — An agreement by a number of persons ■which states that the undersigned “will pay the sum annexed to their names, ’ ’ in order to make up an aggregate sum to be paid to another party, in consideration of services to be rendered, creates a several and not a joint obligation.

Appeal from tbe District Court of tbe Third District, Alameda County.

Tbe facts are stated in tbe opinion.

*W. H. Patterson*and *N.*Hamilton, for Appellants.

Tbe proposition of Sloan and Hartman was made, not to any persons by name, but to such as should undersign or subscribe. In tbe light of tbe subject to wbicb tbe contract related, it may be correctly assumed that tbe object and expectation of Hartman and Sloan was to get so many of tbe settlers (squatters) on tbe Mission lands as would secure to them tbe fees they were desirous to earn or secure, without reference to who tbe subscribers might be.

On tbe other band, tbe squatters, as they were called, *i. e.*persons opposing tbe confirmation of tbe grant, were willing to secure tbe services of Hartman and Sloan, and so *160co-operate to that end. But wben they came to consider and act upon tbe proposal,' they agreed, each for himself, to pay so much money toward the amounts to be paid as he should subscribe for, that is, such sum as he should set opposite his name, and would pay, as required by the terms of the proposal, and thus by separate subscriptions make up the aggregate sum, less the advance payment, which they had already contributed, and which was paid on the spot. That this rendering and construction of the undertaking of the subscribers is the correct one we refer to *Lee*v. *Nixon,*(28 Eng. L. and Eq. B. 70); *Collins*v. *Prosser,*(1 B. & 0. 682, 8 Eng. Com. L. B. 289); *Keightley*v. *Watson,*(3 Exch. 716); *Servante*v. *James,*(10 B *&*C. 410, 21 Eng. C. L. B. 177); Chitty on Contracts, 129; Id. 128, citing *Collins*v. *Prosser,*and cases cited, and *Lee*v. *Nixon, supra.*

The rule which holds that “if a sum *in solido*is advanced by several persons, the law implies a joint promise of repayment to all/’ or to state it in the language of another case, *English*v. *Blandell,*(8 Carr. *&*Payne, 332): “If several persons contribute their several proportions of a sum of money which is to be paid under a special contract to which they are parties, and the money is advanced as a sum *in solido,*and the contract is afterward abandoned or rescinded, the *implied*promise to refund the money arises in favor of all,” does not apply.

This rule laid down in the case cited, and in *May*v. *May,*(1 Carr. & Payne, p. 44), and in *Brand*v. *Boulooit,*(3 Bos. & Pul. 235), is based on an *implied*obligation to refund to all jointly the aggregate sum they have severally contributed *in solido, i. e.,*in a whole sum paid by all without division. If the agreement had provided *expressly*for repayment, the *expressed*terms would control, and if the payment' is made in several sums by each contributor, then repayment shall be made to them severally. This is the doctrine of *May*v. *May, Brand*v. *Boulcott*and *Osborne*v. *Harper,*(5 East. 225.)

It follows, therefore, from these authorities, that in the case of several persons undertaking to pay several sums, *161though, such several sums go to make up an aggregate sum, their undertaking is several and not joint, though the undertaking with them by the other parties to whom the aggregate sum is paid, be joint. (See also Ohitty on Contracts, 128, citing *Berkley dal.*v. *Pesgrove,*1 East. R. 226; and *Smith*v. *Pocldington,*1 Comp. *&*Jerv. 445; *Si. Paul’s Church*v. *Ford & Pomeroy,*31 Barb. R. 16; *Ward*v-.. *Ward,*15 Pick. 511; *Stevens*v. *Roll,*19 N. H. R. 560.)

In the case at bar, it cannot be supposed that any one of the subscribers would intentionally have bound himself to pay for defending the claims of his associates in which he had no interest. No one of them was interested in defeating the Mexican grant beyond the extent of his own possession, but each was willing to pay to the extent of his voluntary subscription, and so expressed himself on the face of the agreement.

*McCullough & Boyd,*for Respondent.

The contract sued on is *joint only*as between plaintiff and defendants.

1st. It requires express words to create a several liability. *(Brady*v. *Reynolds,*13 Cal, pp. 31,42; 1 Chitty on Pleadings, p. 41; 1 Parsons on Contracts, p. 11; 2 Parsons on Contracts, p. 45.)

2d. There are no such express words in this contract. The contract on the part of Sloan and Hartman, as contained in their proposition, urns joint. The acceptance of the proposition, on the part of the defendants, was joint. “The undersigned (settlers) agree to the foregoing propositions.”

3d. The contract was two-fold in its nature. 1st. Between Sloan and Hartman, and the defendants, joint. 2d. Between the defendants, as settlers themselves, several; “and will pay the sum annexed to their names;” that is, will pay as amongst themselves *separately*the sum subscribed in order to pay the sum *jointly*agreed upon to be paid to Sloan and Hartman. *(Byers*v. *Boby,*1 H. Blaekstone, p. 236; *Muzzy*v. *Whiting,*10 Johns, p. 228; *Marshal*v. *Smith,*15 Maine, (3 Shep. p. 17.)

*162Temple, J.,

delivered tbe opinion of tbe Court, Cuock-ett, J., Bhodes, C. J., and Wallace, J., concurring:

In 1857 Sloan and Hartman, plaintiffs assignors, made a proposition in writing to tbe settlers on tbe land known as tbe “Pico claim” (wbicb claim was tben pending in tbe United States'Courts for confirmation), to assist tbe Government of tbe United States in opposing tbe confirmation of tbe claim; and to furnish tbe necessary evidence therefor, the settlers to pay in band tbe sum of five hundred dollars to enable Sloan and Hartman to defray tbe necessary expenses of litigation, and to pay tbe further sum of forty-five hundred dollars in certain contingencies, and concluding as follows: “It being understood that tbe full amount wbicb said settlers are to pay to said Sloan and Hartman for a final rejection of said claim is tbe sum of five thousand dollars, and of wbicb said sum said Sloan and Hartman are to pay all tbe necessary costs and charges.”

Upon tbe paper containing this proposition Sloan and Hartman wrote an acceptance to be signed by tbe settlers, should they accede to the terms proposed. Tbe acceptance is-in tbe following words: “ The undersigned settlers, on tbe within named claim, agree to tbe foregoing jmoposition and will pay tbe sum annexed to their names, for the purpose aforesaid, as tbe same may be required according to tbe terms of tbe within.”

This paper purports to have been signed by thirty-three persons, each one of whom, except tbe last, has set after bis name tbe sum of $125. No sum is placed after tbe last name. Tbe document was returned to Sloan and Hartman, signed as above stated, and tbe first installment of $500 paid. Sloan and Hartman, thereupon, as is alleged, proceeded to perform tbe stipulated services, and this suit is brought to recover upon tbe contract, charging tbe signers jointly. Only eight of tbe defendants were served and judgment having been rendered against them, this appeal is taken.

Tbe only question of moment in tbe case is whether tbe *163liability of tbe defendants is joint, ox several only. Tbe act contracted to be performed by Sloan and Hartman was an act to procure tbe rejection of tbe Pico claim. Tbe amount to be paid was one sum, and tbe first payment was made by Tyson, one of tbe settlers, for himself and tbe others. Tbe settlers agree in terms to tbe proposition made them. To this point there is nothing to indicate that a several liability only was intended, and bad this been all, no difficulty cCuld have arisen; and tbe only question is whether tbe addition of tbe words “and will pay tbe sum annexed to tbeir names for tbe purposes aforesaid,” under tbe circumstances of this case, limits tbe liability of tbe parties signing tbe acceptance to tbe sums resjjeetively set down by them.

We are inclined to regard this expression as a limitation upon tbe liability of tbe parties signing tbe acceptance. Unless this be tbe meaning of tbe language used, we are unable to give to it any force whatever. We cannot perceive tbe force of tbe suggestion of plaintiff’s counsel, that tbe contract was joint as to Sloan and Hartman, and several among themselves. It certainly could not have been intended to limit tbe right to compel contribution, should any one pay more than bis share; and tbe language used is not appropriate as expressing tbe proportion in which each shall contribute to make up a stipulated sum; and in this respect tbe contract differs from tbe cases cited by plaintiff’s counsel. Tbe agreement to pay tbe amount set opposite tbeir names is in terms with Sloan and Hartman, and is plainly stated to be for tbe purposes of raising tbe sums required by them. Although accepting in general terms tbe proposition made, it was perfectly competent for tbe defendants to limit tbeir liability to specific amounts; and if they have done so, undoubtedly they will be held liable only according to tbe terms of tbe contract. We regard this contract as meaning precisely tbe same thing as though it bad read that tbe undersigned would pay tbe sum annexed to tbeir names, and no more. It was an express promise to pay that sum, thereby negativing any intention to pay more,

*164The case is not unlike the ordinary case of a subscription paper, where each subscriber promises to pay the sum set opposite his name, and the words ‘ ‘ the undersigned” is of some force, as indicating that there had been no previous agreement among those who signed, but that each person should subscribe such sum as he was willing to give. It is unreasonable to suppose that any one would become jointly liable for any one who would sign an open subscription paper.

The idea seems to have been that the subscribers were willing to contribute certain specified amounts to make up ' the sum required by Sloan and Hartman, and it was probably thought that the sum could be raised in that way. And this accords with the situation of the parties who signed the acceptance. They were settlers upon the land claimed, and desired to have the claim rejected, in order that they might not be deprived of the advantages of possession. They had no joint interest in the subject of the controversy. They had a common, but no joint, interest in the act to be accomplished. There was no relation between them that would make it probable that they would be willing to undertake for each other, but the contrary. They may have had conflicting claims to the land. They certainly had, so far as appears, no joint estate or claim, and were not engaged in a joint enterprise or undertaking. The whole amount agreed to be paid may have, and most likely did exceed the value of any one claim at the time.

It does not appear to be necessary to discuss the other points raised upon this appeal.

Judgment and order reversed, and cause remanded.

Sprague, J., expressed no opinion.