Kent v. Holliday , 1861 Md. LEXIS 48 ( 1861 )

Lis Grand, C, J.,

delivered the opinion of this court.

This suit was brought by the appellee, as endorsee, against the appellant, as acceptor, of a bill of exchange. The writ was issued against the defendant in his individual capacity. The declaration alleges, in substance, that, J. T. Lyles &. Co. drew their bill of exchange, and directed the same “to the said defendant and one Thomas H. Kent of Joseph, trading under the name of Thomas H. Kent of Jos. &. Co., requiring them to pay to R. G. Mackall, or order,” &c., “and the said defendant and the said Thomas H. Kent of Joseph,, trading as aforesaid, accepted the said bill,” &c.

The defendant demurred to this declaration, upon the ground, substantially, that it sets forth as cause of the action, & joint obligation of the defendant with one Thos. H. Kent of Jos., trading under the firm of of Thomas H. Kent of Jos. Co., and that the suit should have been against the-joint acceptors in (heir partnership capacity, and not against the defendants in his individual capacity. The plaintiff entered a ne recipiatur to this demurrer, upon the ground, it is presumed, that the defendant had previously pleaded to the declaration, but the court overruled this motion, and the plaintiff then joined in the demurrer. Upon this state of the case, no exception to this action of the court having been taken, by the plaintiff, he cannot be heard to say, that the demurrer was not interposed at the proper time.

The first question then is, ought this demurrer to have been sustained, the court below having overruled it., and the judgment being against the defendant?

The declaration clearly states the case of a joint contract, and the general rule is, that, in such a case, all the joint contractors must be joined as defendants. “In an action against a partnership firm on a partnership contract not under seal, all those who were partners at the time of the contract, ought to be joined as defendants; for a contract when made with partners is originally a joint contract, though it may be separate as to its effects.” Coll, on Partnership, 419, 420, (Ed. of 1834.J But, it is said, that the omission to join as defendant a party jointly liable, can only be availed of by plea in abatement. Such is undoubtedly the general rule, but it is equally well settled, that if it expressly appear on the face of the declaration, that the party omitted is still living as well as that he jointly contracted, the defendant may demur, move in arrest of judgment, or sustain a writ of error. 1 Ghitty,s Pleadings, 46.

In this case, the declaration is silent as to whether the other joint contractor is dead or alive; it says nothing upon the subject. There is much conflict in the authorities whether in such a case a demurrer will lie. On the one hand, there is high authority for saying, that in order to authorise a demurrer the declaration must expressly state that the party omitted is still living. On the other hand, decisions of equal weight have held, that the non-averment' of the death of the defendant who is omitted, is a sufficient admission that he is still alive; — that having shown there was a joint-contractor at the time of the contract made, the presumption is that he is still alive, unless the plaintiff will rebut the presumption hitmself has raised by showing that he is dead. It is difficult to ■determine to which side the preponderance of authority on this question inclines. The former Court of Appeals, in the case of Merrick vs. The Bank of Metropolis, 8 Gill, 74, has said, however: — -“Tf the declaration discloses that the promise is joint, it is necessary to aver that the other is dead, or to account for his not being joined in the action, or it is bad upon demurrer or writ of error.5’ And in the case in 5 Greenleaf s Reps., 443, there referred to, it was held that the declaration was fatally bad for want of an averment that the ■co-promisors were dead at the time of the commencement of the action, and the court adds: “There seem to be no more reason for obliging a defendant in a plea in abatement, after averring that there was a co-promisor, who is not sued, to go on and aver his life, than there is for bliging a plaintiff, who discloses in his declaration that, there was a co-promisor who is not sued, to go on and aver his death. The averment of life is essential to the sufficiency of the plea; and the averment of death to the sufficiency of the declaration.’5

To these authorities we must adhere, and, as this declaration discloses, that there was a joint contractor at the time this contract was made, and does not aver that he was dead, or a non-resident of the county, or account in any other way for his not being joined in the action, the demurrer thereto should have been sustained.

We have carefully examined the Act of 1856, cli. 112, and can find nothing in its various provisions changing the law as applicable to this case. The defect in the declaration is a defect in substance, which could be availed of by general demurrer.

After the demurrer had been overruled, the defendant filed four amended pleas, so called: 1st that he never was indebted as alleged; 2nd, that he did not promise as alleged; 3rd, that he did not accept the said bill of exchange as alleged; and 4th, that said bill Was not duly presented for acceptance as alleged. The plaintiff (V/nmreri to the 1st a»v.) 2nd of these pleas, because they traverse matters not alleged in the declaration, and joined issue upon the 3rd and 4th. The court overruled the demurrer as to the-first plea; but sustained it as to the second. This latter decision is also before-us for review on- this appeal.

If the reversal or affirmance of the judgment depended upon our decision of the propriety of this ruling-, we should' not reverse the judgment, because no injury has been wrought the appellant thereby. He- could have availed himself, at the-trial, of every defence under the pleas upon which issue was joined, that he could under the present plea. But as matter of practice, and looking to the forms of pleading prescribed in,. and to the other provisions of the Act of 1856, chapter 112,. under which these proceedings were had, we think this second plea was properly interposed. The declaration neither states in terms, an indebtedness or a promise to pay, but states-facts from which both are implied by law, and both were-proper subjects of denial by pleas.

The case was then-, tried upon issues joined upon the 1st,. 3rd and 4th pleas, and, two exceptions taken by the defendants to the rulings of the court.

In the posture in which the case stood at the trial, the-court’s ruling in the first exception was clearly correct. The-court having overruled the demurrer to the declaration, the-latter, in deciding (his exception, is to be treated as a valid-declaration. After the proof set out in this exception, the-plaintiff offered to read in evidence- to the jury, the “said bill', of exchangethat is, as we are informed in the exception,, the bill “mentionedin the declaration.” The-exception gives us no information of any other bill than that declared on in the narr. and we cannot travel through other parts of the record5 to find any other. The bill mentioned in the declaration was clearly admissible in evidence, that declaration having ■ been decided to be sufficient. Whether there be any such variance between the bill of exchange found elsewhere in, the-record, and that declared: on, as to render the former inadmissible as evidence under the declaration, we need not decide.

We also think the ruling in the second exception was correct.. Si prayer that, under the pleadings and evidence in the cause, sthe plaintiff is not entitled to recover, is too general. This bras been so frequently decided by this court, since the passage of 'the Act of 1825, chapter 117, that no reference to the authorities is necessary.

(Decided October 29th, 1861.)

Judgement reversad and procedendo awarded„