Dodge v. McKay , 4 Ala. 346 ( 1842 )

COLLIER, C. J.

l. We are at a loss to conjecture the causes for which the demurrer to the declaration was sustained. Each of the counts seem to us to disclose a good cause of action, and to be drawn with care, if not unnecessary particularity. But as the demurrer is to the entire declaration, it is quite sufficient if either count be good.

The action is founded upon the covenant of the parties to abide by the award of the arbitrators, and the stipulation of the defendants to give their note at twelve months date, for the sum awarded to the plaintiffs as due from McKay, as also for notes and accounts in suit against him in Charleston, South Caroliua. The declaration alledges the making of an award for a sum certain in favor of the plaintiffs, notice of the fact by the defendants; and a refusal by them to make the note. Here is an allegation of a direct breach of covenant by defendants, and one from which injury may result to the plaintiffs. If an action could not be maintained under such circumstances, the plaintiffs could not resort to McDonald as a surety, notwithstanding his express undertaking for his co-defendant. Such an idea cannot be tolerated.

2. Where a deed is pleaded with a profert either by the plaintiff or defendant, the other party may have oyer of it, if the profert was necessary. [2 Salk. Rep. 497.] Bat where the declaration is upon a sealed instrument, which stipulates to perform a duty provided for in another writing, the defendant cannot have oyer of the other writing. [1 Saund. Rep. 8; id. 405, n. 1.] If oyer be craved where it is not demandable, the other party may treat it as a nullity; but if, instead of doing this, he grant the oyer, it is said the party who craved it may consider the whole instrument as if it were pleaded by his adversary. [2 Doug. Rep. 476-7; 1 Saund. Rep. 317, n. 2.] To refuse oyer when it ought to be granted, has been held to be error. [2 Strange’s Rep. 1186 ; 1 Wil. Rep.] But it is said error will not lie for granting oyer where it is not demandable. [1 Saund. Rep. 9, b.; 2 id. 46, b.]

In the case before us it is deducible from the principles we have stated, that oyer could not have been demanded of the award. It coitld not be regarded as the basis of the action, but only as a part of the proof to sustain the allegation of a fact occurring after the covenant was entered into by the parlies. But the granting of oyer did not work an injury to any one. The award does not show that the plaintiff is not entitled to recover, but rather proves every thing for which the plaintiffs in their declaration rely on it. And though oyer was improperly granted, we have seen that it furnishes no ground for the reversal of the judgment.

3. Upon a demurrer to the declaration the Court should not have looked to any other part of the record to determine it to be. insufficient. But even if the demurrer brought to the view of the Court the indorsement on the writ, it should not have been sustained. True, the writing sued on, was executed by David C. Kolb, for Dodge, Kolb & McKay, and for Kolb & McKay; yet this does not show its invalidity; for the act may have been authorized by his partners, and the fact of bringing a suit on it, shows that they adopted it, which is equivalent in law to a previous authority.

Where a partnership is sued upon a sealed instrument, executed by one of its members in the name of the firm, the proper mode of taking advantage of it by the members not authorizing, or assenting to it, is by the plea of non est factum. But where they sue on an indenture thus executed, we cannot conceive how, or why, the defendant should object to the execution by the plaiutiffs.

In any view taken of this case we cannot discover a sufficient reason for sustaining the demurrer. The judgment is consequently reversed and the cause remanded.