Section 12 Contract Actions

• Library: Damages 2012

Although joint and several liability originated in negligence actions, codefendants in a contract action may also be held jointly and severally liable. Missouri law holds that two or more promisors who are obligated to perform under contract may be jointly liable. “Under the common law, when two or more persons undertake the performance of an obligation, the presumption is that the undertaking was joint.” Don L. Tullis & Assocs., Inc. v. Gover, 577 S.W.2d 891, 900 (Mo. App. S.D. 1979) (quoting Ill. Fuel Co. v. Mobile & O. R. Co., 8 S.W.2d 834, 840 (Mo. 1928)). “A joint contract is one by which two or more promisors are jointly bound to fulfill its obligations, and either of whom may be charged with the entire liability under the contract.” Tullis, 577 S.W.2d at 900. Not only does the common law provide for joint and several liability, but § 431.110, RSMo 2000, provides that “[a]ll contracts which, by the common law, are joint only, shall be construed to be joint and several.”

Consistent with the legal application of joint and several liability, it may be imposed when breach of contract and another distinct wrongful act form an indivisible injury. In Ross v. Holton,
640 S.W.2d 166 (Mo. App. E.D. 1982), the...