All contracts, which by the common law are joint only, shall be held and construed to be joint and several; and in all cases of joint obligations or assumptions by partners and others, suit may be brought and prosecuted against any one or more of the parties liable thereon, and when more than one person is joined as defendant in any such suit, such suit may be prosecuted, and judgment rendered against any one or more of such defendants.
History: Laws 1878, ch. 4, § 3; C.L. 1884, § 1889; C.L. 1897, § 2946; Code 1915, § 4078; C.S. 1929, § 105-112; 1941 Comp., § 19-603; 1951 Comp., § 21-6-3.
Bracketed material. — The bracketed material was inserted by the compiler and is not part of the law.
Compiler's notes. — This section, except as to partners, may be superseded by 38-4-2 NMSA 1978.
Cross references. — For joinder of persons needed for just adjudication, see Rule 1-019 NMRA.
For permissive joinder of parties, see Rule 1-020 NMRA.
For class actions, see Rule 1-023 NMRA.
For judgments upon multiple claims or involving multiple parties, see Rule 1-054 NMRA.
Action on forthcoming bond. — Though a bond sued on was a writing obligatory and appeared to be joint, only by its terms, by the authority of this section it must be considered to be joint and several and the plaintiff could bring suit against any one or more of the parties to the obligations, without joining the others, and without showing that judgment has been obtained and the remedy exhausted against the principal. Romero v. Wagner, 1884-NMSC-013, 3 N.M. (Gild.) 167, 3 P. 50.
Joint indemnity agreement construed as joint and several. — Under 38-4-2 NMSA 1978 and this section, an indemnity agreement, if joint, is to be construed as being joint and several. Fidelity Nat'l Bank v. Lobo Hijo Corp., 1979-NMCA-045, 92 N.M. 737, 594 P.2d 1193, cert. denied, 92 N.M. 675, 593 P.2d 1078.
Wife who joins with her husband on a note is jointly and severally liable and may be legally bound to pay the entire debt. A judgment on a joint and several note signed by both the husband and the wife is collectible from the community property or the separate property of either or both. Commerce Bank & Trust v. Jones, 1971-NMSC-107, 83 N.M. 236, 490 P.2d 678.
A partner may be sued individually without regard to the partnership. United States v. Gumm Bros., 1899-NMSC-013, 9 N.M. 611, 58 P. 398; Curran v. William Kendall Boot & Shoe Co., 1896-NMSC-009, 8 N.M. 417, 45 P. 1120.
One copartner may maintain an action at law on a promissory note against a copartner. Mayer v. Lane, 1927-NMSC-079, 33 N.M. 24, 262 P. 180; Lane v. Mayer, 1927-NMSC-080, 33 N.M. 28, 262 P. 182.
Liability of copartner for punitive damages for other partner's conduct. — Absent a finding of ratification, authorization, or participation in the fraudulent conduct, punitive damages may not be recovered from copartners for one partner's fraudulent conduct. Duncan v. Henington, 1992-NMSC-043, 114 N.M. 100, 835 P.2d 816.
Copartners of partner found liable for fraud were liable to plaintiff jointly and severally for the award of compensatory damages, attorney fees, and costs; however, only partner committing fraudulent acts was liable to plaintiff for the award of punitive damages. Duncan v. Henington, 1992-NMSC-043, 114 N.M. 100, 835 P.2d 816.
Dismissal seasonably entered by leave of court as to one of a number of defendants severally liable does not discharge from liability his co-obligors and codefendants. Bank of Commerce v. Broyles, 1910-NMSC-017, 16 N.M. 414, 120 P. 670, rev'd on other grounds sub nom. Schmidt v. Bank of Commerce, 234 U.S. 64, 34 S. Ct. 730, 58 L. Ed. 1214 (1914); Newhall v. Field, 1905-NMSC-012, 13 N.M. 82, 79 P. 711.
Supreme court has power to reverse joint judgment as to one defendant and affirm as to the other, where the facts and law justify such action, in view of this section which abrogates the common-law rule. McDonald v. Mazon, 1917-NMSC-061, 23 N.M. 439, 168 P. 1069.
Am. Jur. 2d, A.L.R. and C.J.S. references. — 59 Am. Jur. 2d Parties §§ 110, 118.
Judgment for or against partner as res judicata in favor of or against copartner not a party to the judgment, 11 A.L.R.2d 847.
Dismissal, discontinuance, or nonsuit as to some of defendants in contract action against partnership or partners as affecting others, 44 A.L.R.2d 580.
Structure New Mexico Statutes
Section 38-4-2 - [Several persons liable on contract, judgment or statute; parties defendant.]
Section 38-4-5 - [Suits against partners; joinder; enforcement of judgment; service of process.]
Section 38-4-6 - [Married woman.]
Section 38-4-7 - Infant; suits between spouses.
Section 38-4-8 - [Infants; bond of next friend.]
Section 38-4-9 - Costs in suit brought by certain representatives of infant.
Section 38-4-10 - Guardian ad litem for infant defendant.
Section 38-4-11 - Failure to apply for appointment of guardian ad litem.
Section 38-4-12 - Liability of guardian ad litem for costs.
Section 38-4-13 - Definition of "infant" as used in Sections 38-4-7 through 38-4-12 NMSA 1978.
Section 38-4-14 - Incapacitated person; definition.
Section 38-4-15 - Appointment of guardian ad litem to defend suit.
Section 38-4-16 - Compromise by guardian ad litem.