Dunlap Printing Co. v. Ryan , 275 Pa. 556 ( 1923 )

Opinion by

Mr. Justice Schaefeb,

Plaintiff brought an action of assumpsit against Michael J. Ryan, Daniel Wade, Thomas Reilly, Daniel G. Murphy and John J. Green as an unincorporated association operating under the name of “Ryan Campaign Committee” to recover the amount alleged to be due for printing and stationery furnished the committee. When the case came on for trial, plaintiff, with leave of court, entered a discontinuance as to the defendant Green, and the case was continued. When reached for trial a second time, the jury was sworn against the four remaining defendants, and thereupon, before plaintiff opened its case, defendants’ counsel moved the court to dismiss the suit and to render judgment for defendants on the ground that the discontinuance entered as to Green operated as a release and discharge of the four other defendants. Without giving plaintiff opportunity to present its proofs, the trial judge granted the motion to dismiss and entered judgment for defendants, from which judgment plaintiff has appealed, urging that there was no legal warrant for the court’s action.

The manner of procedure here followed might1 be a speedy way to dispose of litigation, but it is without authority in law. The methods available to a defendant to get rid of a suit brought against him without full trial are by an affidavit of defense by way of demurrer, by motion for nonsuit at the close of plaintiff’s evidence, or by a point for binding instructions when the proofs on both sides are closed, and possibly by a demand for an offer from plaintiff covering his entire case at the beginning of the trial and a ruling thereon, but even in this day, when there is a somewhat insistent demand for greater celerity in court proceedings, no such short cut to disposition of a case without giving plaintiff opportunity to offer his proofs, can be sanctioned. Even under defendants’ own theory that the action was joint and that a discontinuance as to one defendant worked a discharge as to the others, a proper determination could not be reached until the reason for the discontinuance was known. It might well be that the name of the defendant as to whom the discontinuance was granted was brought into the action by mistake. Where a suit is brought against a number of defendants jointly there is nothing to prevent the plaintiff from discontinning as to one, amending Ms pleadings and proceeding against the remaining parties jointly. By his writ and first pleading, he does not fix his status as to the defendants, beyond recall.

In Montelius v. Montelius, 209 Pa. 541, where it' appeared that on trial defendant made an offer which, if fulfilled, would have prevented binding instructions for plaintiff, and the court, without ruling on the offer, said, “All offers will be considered as proven,” and immediately directed a verdict for plaintiff, we held t'he verdict and judgment must be set aside. In the case at bar, appellant was not even permitted to make an offer. Neither a nonsuit nor a direction of a verdict for t'he defendant nor a demurrer to evidence is proper before the plaintiff has closed his case: Abbott’s Civil Jury Trials (3d ed.) 598. Bastian v. Phila., 180 Pa. 227, in principle rules the case in hand; there when plaintiff had not completed his testimony and without waiting for him to further testify or offer additional evidence and rest his case, the trial judge of his own motion ordered a nonsuit. Speaking of this procedure, we said: “This action of the court was wholly unwarranted......Meager as the testimony is, on account of the unwarranted action of the learned judge in summarily terminating the trial before the plaintiff had either time or opportunity of developing his case, there is quite enough in it to carry the case to the jury.” In reversing the judgment and remitting the record, we did so “for the purpose of a full and fair trial.” Abbotts Alderney Dairies v. Phila. Rapid Transit Co., 62 Pa. Superior Ct. 343, bears on the question we are considering. In that case, the driver of the wagon which had been in collision with defendant’s car was called as the first witness for plaintiff. At the conclusion of his evidence, which was given in a somewhat obscure manner, a second witness was called, whereupon the court ruled that it would not hear any further testimony because, on the evidence of the driver, the case showed contributory negligence and a nonsuit was entered. In reversing the judgment, the Superior Court said: “The nonsuit could only be entered after tbe plaintiff had bad an opportunity to introduce its evidence and it bad then appeared that this was not sucb evidence as in law is sufficient to maintain tbe action. Tbe first section of tbe Act of March 11,1875, P. L. 6, clearly implies that the plaintiff shall be first beard through bis witnesses before a nonsuit for lack of evidence is granted. Under any other application of tbe statute, plaintiff might be thrown out of court when be bad testimony available with which to make out a prima facie case.” If a nonsuit cannot be entered against a plaintiff until after be has bad an opportunity to introduce all bis evidence, for much stronger reason a judgment cannot be.

But is sucb an action as that here brought, one against individuals comprising an unincorporated association, joint? To sustain their position that it is, defendants rely on the cases of Murtland v. Floyd, 153 Pa. 99; Burgess v. Sherman, 147 Pa. 254; Hibberd v. Hubbard, 211 Pa. 331; Cougbenour v. Subre, 71 Pa. 462; Donnelly v. Graham, 77 Pa. 274; and Loew v. Stocker, 61 Pa. 347. None of these was an action against the defendants as members of an unincorporated association. In Murtland v. Floyd, tbe action was against tbe defendants as partners; in Burgess v. Sherman as joint contractors; in Hibbard v. Hubbard as surviving partners and successors in a partnership; in Cougbenour v. Subre on a joint note; in Donnelly v. Graham as partners; and in Loew v. Stocker on a joint bond.

In Ash v. Guie, 97 Pa. 493, an action against more than a hundred persons, members of a masonic lodge, for money loaned for tbe construction of a building, tbe difference in responsibility between partners and members of an unincorporated association was pointed out, as was also tbe difference in liábility among members of tbe association between themselves and that it was not a joint liability under all circumstances. In tbe course of tbe opinion, it was said (p. 500): “Those who engaged in tbe enterprise are liable for tbe debts they contracted, and all are included in sucb liability wbo assented to tbe undertaking, or subsequently ratified it. Those wbo participated in tbe erection of tbe building, by voting for and advising it, are bound tbe same as tbe committee wbo bad it in charge. And so with reference to borrowing money. A member wbo subsequently approved tbe erection or borrowing could be held on tbe ground of ratification of tbe agent’s acts. We are of opinion that it was error t'o rule that all tbe members were liable as partners in their relation to third persons in tbe same manner as individuals associated for tbe purpose of carrying on a trade......[p. 502] It is difficult to conceive of a meritorious defense in those wbo actually got tbe money, some of whom signed tbe certificate, and others actively participated in tbe giving of it. They have a legal right to refuse payment until judgment be recovered according to law. But they cannot complain if the plaintiff fails to include every one in the action who is liable or fails to discover proof against every one included. In tbe nature of tbe case, it is difficult for tbe plaintiff to determine in advance the precise individuals wbo are liable, though be be sure of some of them, and tbe court below has not been, and will not likely be, slow t'o allow necessary amendments, authorized by tbe statute.”

In deciding a case very close to tbe one in band on its facts (Franklin Paper Co. v. Gorman, 76 Pa. Superior Ct. 276), Judge Porter, speaking for tbe Superior Court, said: “Tbe members of unincorporated associations, other than those within tbe provisions of tbe Act of 1876, are individually liable for the debts of tbe organization which they contract, or authorize......When tbe committee of a political party, or an officer of that committee, goes to a merchant and orders goods to be delivered at tbe party headquarters, tbe merchant is not required, in order to recover tbe value of tbe goods, to bring suit against all tbe members of tbe party, or even against all the members of the committee......Voluntary associations, for social, political or charitable purposes, and tbe like, are not partnerships, nor have their members the powers and responsibilities of partners. The officers, or a committee, or any number of members of such a party, have no right to contract debts which will be valid against every member of the party, or of the committee. But those who make a contract, not forbidden by law, are personally liable, and all are included in such liability who assent to the undertaking.”

In an action such as this, the liability of the defendants may be joint or several or it may be partly joint and partly several, depending upon how the goods were purchased from the plaintiff or upon defendants’ subsequent refusal or ratification of purchases not directly made by themselves but by one of their number. From what has been said, it follows that the judgment entered by the court below was wrong.

The judgment is reversed with a new venire.