and they alone may sue. The representative of the deceased may not sue or join with them. This is analogous to the survivorship of liability in the case of joint promisors.98 Similarly, upon the death of the last survivor the right of action goes to his representative or executor.99 Moreover, where A and B are joint promisees and C, the promisor, if A releases C, the action is barred and B may not sue. unless there is fraud or collusion on A's part.1 144. Several contracts.-If A and B bind themselves severally to C, the latter may claim the debt or performance against A and B separately. In such cases, C must sue either A or B, or he may sue A in one action and B in another, but he may not sue A and B in the same action. The same rule applies to several promisees. If A and B are several promisees and X and Y are several promisors, A or B may sue X or Y, but A and B may sue neither. They may not be joined in an action.3 Where the promisors are severally liable, a judgment against A alone does not discharge B until the judgment is paid and satisfied. Furthermore, the doctrine of survivorship does not apply to several contracts. 145. Joint and several contracts.—Where A, B and C promise X "jointly and severally," it is said that a joint and several contract has been created. The characteristics of such agreements differ greatly 98 Donnell v. Manson, 109 Mass. 576. 99 Stowell's Admr. v. Drake, 23 N. J. L. 310. 1 Osborn v. Martha's Vineyard, 140 Mass. 549. 2 Clark, Contracts (2d ed.), p. 383. 3 Anson, Contracts (Huffcut's 2d ed.), § 329. 4 Ward v. Johnson, 13 Mass. 148. from those of joint obligations. Thus X may sue A or B or C separately or he may sue A and B and C jointly. But he may not sue A in one action, and B and C in another. X must sue each promisor separately or all together.5 The doctrine of survivorship applies only in a limited sense to joint and several contracts. Thus, if A dies, it is said that the joint liability rests on B and C; but the separate liability of the deceased may be enforced against his estate by filing a claim. The executor may not, however, be joined with the survivors in an action.® A judgment, if unsatisfied, against one of the joint and several promisors is not a bar to an action against another." Courts differ on the right to proceed against each creditor separately where a joint judgment has been obtained against all. The courts that deny the right take the view that having elected to proceed jointly, the creditor may not thus sue severally.R Other courts take the broad view that as long as the creditor remains unpaid, he may proceed against each promisor severally." A release of one joint and several promisor is a release of all, as in the case of a joint promisor. Courts, however, will not regard a contract not to sue as a technical release, and such a contract is the effective method of relieving the desired promisors from liability.10 5 Cummings v. People, 50 Ill. 132. • May v. Hanson, 6 Cal. 642; Eggleston v. Buck, 31 Ill. 254. 7 Giles v. Canary, 99 Ind. 116. 8 United States v. Price, 9 How. 83 (U. S.). Moore v. Rogers, 19 Ill. 347. 10 Rowley v. Stoddard, 7 Johns. 207 (N. Y.). Promisees, that is to say, creditors, may only be joint or several. They may not be joint and several. A promise cannot be so made as to entitle persons to sue jointly and severally.11 11 Endith v. Vallentine, 63 Me. 97. PART IV INTERPRETATION AND CONSTRUCTION OF CONTRACT CHAPTER XII. PRINCIPLES OF INTERPRETATION AND CONSTRUCTION. 146. What is meant by interpretation and construction of contract.—When a contract is involved in a law suit, it comes before the court for decision. The parties may disagree as to its existence, or as to its meaning and scope. If A claims that he made a contract with B, he must prove that contract. This involves the rules of evidence. After the contract is proved, its rights and obligations are determined by the rules of construction and interpretation. 147. Rules of evidence. The rules of evidence relating to contracts are more properly a part of the article on Evidence. But certain fundamental principles require attention at this time. Oral contracts. Contracts may be oral or in writing. Certain oral contracts falling within the provisions of the Statute of Frauds are unenforcible, and may not be proved. Such contracts, not being admitted to proof, do not enter into this discussion. Where a contract is oral, that is, where A and B agree by word of mouth to the sale and purchase of A's horse for $100, the words of A and B may be proved by witnesses and their own statements. Furthermore, the material and relevant circumstances surrounding the formation of the oral contract may be admitted in evidence. If there is a dispute as to the terms, the jury must decide the facts and determine what the parties said and did and whether they intended to enter into a contract. If the jury find that there was such an intention, and find what was done and said, it is then for the court to say whether what they have said or done amounts to a contract, and what is its effect. Thus, what A and B said and did are questions of fact. The legal result thereof is a matter of law. Questions of fact are determined by the jury; matters of law by the court. A person who is proved to have made an oral contract will not be heard to say he did not mean what he said. The law gives a person a state of mind or intention corresponding to the rational and honest meaning, not only of his words, but of his actions as well. Where the conduct of A towards B, judged by a reasonable standard, indicates an intention to agree as to the sale of a horse, that agreement is established as a fact by proof of such conduct. This is true, regardless of the unexpressed mind of A. Written contracts. The rule just outlined applies to written contracts as well. In addition thereto, certain rules of evidence affect written contracts. Thus, where A and B reduce the terms of the contract to writing, the general rule is that neither may offer parol or extrinsic evidence to add to or vary the written agreement. Such parol evidence, which |