Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1903-12-10

81 IL
tract of another kind and the plaintiff
would be obliged to pursue his remedy
against each one severally. But if
these three defendants employed the
plaintiff to attend to the several ac-
counts and to take measures
for expunging the claims of preferred
creditors or any other procedure con-
nected with the bankruptcy PROCEED
ings for their common benefit, each to
pay his share of the expenses.
then instruct you as a matter of law
that they would be joint contractors.
Some question has been raised as to the
understanding or meaning or legal
effect of the term each to pay his
share of the expenses And yet, if
there were TO arrangement as to each
paying his share of the expenses, the
law would imply such payment as be-
tween the joint contractors, under. the
law of contribution"
Counsel for the defendant, at the
close of the charge requested the fol-
lowing Instructions: IF the plaintiff
proves that he made identical terms
with the three parties defendant and it
appears that the agreement was that
the three parties defendant were each
to pay One-third only of the plaintiffs
bill, or to share it in any other proper
ton. it was not joint agreement, and
the plaintiff cannot maintain the
action This the court declined to
give.
The instruction complained of de-
clares 'as matter of law" that the de-
PENDANTS would be joint contractors if
the plaintiffs services We're FOR their
common benefit, each to pay his share
of the expenses"
If the services We're rendered for the
common benefit of all the defendants,
and it was the express agreement Of
the parties that each of the defendants
was to pay only his proportional share
OF the expenses. so that neither would
become surety for the other they
would not become joint contractors.
But if, as elsewhere stated in the
charge. there was no arrangement as
TO each paying his share Of the ex-
penses, the law would imply such pay
ment as between joint contractors I'M
der the law of contribution although
each of such joint contractors would
also be liable in the first instance to the
plaintiff to pay the whole amount, with
the right of contribution from the
others, Thus each of the defendants
might be liable Ito pay his share"
either as a joint contractor under the
law of contribution, or as several
contra ctor, under the express agree
ment of the parties.
The fact that the services were rem
Iered for their common benefit is not
conclusive, and the question whether
the liability of tho defendants is Joint
or several may still depend upon the ex-
press agreement Of the parties, or upon
their intention as gathered from all the
circumstances OF the case. The phase
each to pay his share of the expenses
is therefore equivocal and misleading.
Held; that taken in connection with
The refusal Of the presiding justice to
give the requested instruction, it nee
assarily had the effect to withdraw
from the jury all consideration of TIE
evidence tending to show q several con-
tract
1t is considered by the court that the
defendant company is entitled to have
the jury pass upon the evidence intro
iuced and touching the issue raised by
he pieadings in connection with the
circumstances and situation of the
oarties and the nature of the services
rendered by the plaintiff. under more
explicit instrY lions respecting the
:egal effect of 4 payment by each de-
'eniant Of his proportional share of
he plaintiffs charges.
Exceptions sustained.