Seelen and Unnewehr v. John Ryan and Co. et al.

[Special Term, January, 1872.] Seelen and Unnewehr v. John Ryan and Co. et al. The plaintiffs bring suit against John Ryan & Co., contractors, Long & Eiedeldey, their sureties, and the city of Cincinnati, for injuries to horses, wagon, and harness, through the want of a proper guard for an excavation for a sewer. On demurrer: Held, that Long and Eiedeldey, the sureties, were improperly joined, and that the plaintiffs must elect between John Ryan & Co., the contractors, and the city, which party they intend to pursue. H. Marckworth, for plaintiff. Long S¡ Kramer, contra. [MAJORITY — Walker, J.] Walker, J. This suit is brought by the plaintiffs against John Ryan & Co., contractors, Long and Eiedeldey their sureties, and the city of Cincinnati, for injuries to horses, wagon, and harness, through the want of proper guards to an excavation for a sewer which they were constructing. Long, one of the sureties, demurs on the grounds of misjoinder of parties, and that the petition does not state facts sufficient to constitute a cause of action. There is, evidently, a misjoinder, for supposing it to be a case for the application of the maxim of respondeat superior, and that the city was1 the master, and Ryan & Oo. the servant, in the execution of the work, which is the best point of view for the plaintiff’ the master and servant can not both be sued in the same action. Clarke v. Fry, 8 Ohio St. 358. Long and Eiedeldey were sureties to the city of Cincinnati for the faithful performance of this contract. The plaintiff* is not in privity with the city, and can not in any way, that I can discover, directly avail himself of this bond which is to the city only. The demurrer will therefore be sustained as to Long and Eiedeldey, and the plaintiff may have ten days to elect whether lie will pursue Ryan & Co., or the city, and the other party will then be stricken out.