Sanborn v. Randall

Debt, for rent. Facts found by the court. Rent is due from the defendant on a sealed lease, which is signed by him as lessee, and by the plaintiff, Sanborn, as lessor. The leased premises belonged to Sanborn, Stowell, and others. The lease (in which Sanborn “ and others ” are described as the lessors) was signed by none of the owners but Sanborn, at the request of the defendant, who preferred to deal with Sanborn alone. The defendant has been succeeded in the occupation of the premises by others, who agreed to pay the.rent, and gave him a bond of indemnity against his liability for the rent, and on that bond Stowell is a surety. The defendant objects that the action cannot be maintained without joining all the other owners as plaintiffs, and that Stowell cannot be a plaintiff. The plaintiff has leave to amend.

As Stowell cannot recover what he is bound to pay (Snow v. Fletcher, 43 N. H. 642) he cannot be a plaintiff, and the action cannot be maintained by Sanborn.alone. Mussey v. Holt, 24 N. H. 248; Kenniston v. Ham, 29 N. H. 501, 509; Great Falls Co. v. Worster, 15 N. H. 412, 460.

An amendment is not necessary for the maintenance of the action. The defendant’s promise may be enforced by the promisee. 1 Ch. Pl. 3; Dic. Par. 103, 135, 136; Sto. Ag., s. 422; Berkeley v. Hardy, 5 B. & C. 355; Humble v. Hunter, 12 Q. B. 310, 313, 315; Winchester v. Howard, 97 Mass. 303, 305. If convenience required the other owners to be joined as plaintiffs, the right of the parties to the best inventible procedure would prevail over the ancient rules. The justice of Stowell’s share •of the rent being recovered in this suit may be considered at the trial term. If the defendant demands a trial of that point, Stowell should be made a party, that there may be no question of his being bound by the judgment.

Case discharged.