Kerr v. Cochran , 29 S.C. 61 ( 1888 )

The opinion of the court was delivered by

Mr. Justice MoIver.

This was an action on a promissory note alleged to have been executed by the defendant and made payable to Kerr & Co. In the first paragraph of the complaint the allegation is that the plaintiffs are partners under the name and style of Kerr & Co. The second allegation is as to the execution of the note and date and amount thereof. The third paragraph contains an allegation that no part of said note has been paid, and states the amount due thereon. And in the fourth paragraph the allegation is that the plaintiffs are the legal owners and holders of the note. The answer of defendant denies the allegations contained in the first and fourth paragraphs of the complaint. The plaintiffs, upon due notice, submitted a motion to the Circuit Court to strike out the answer “as sham, irrelevant, and frivolous.” The motion was refused upon the ground that the answer presents an issue which is triable by a jury, and the plaintiffs appealed upon the ground that the Circuit Judge erred in holding that the answer presented such an issue.

The only question, therefore, presented by the appeal is, whether the answer in this case does present an issue triable by a jury. This question, it seems to us, is conclusively determined by the decision of this court in the case of Bischoff & Co. v. Blease, 20 S. C., 460. In that case the action was on promissory notes alleged to have been executed by the defendant and made payable to the plaintiffs, Henry Bischoff & Co. In the title of the case the names of three persons as plaintiffs were set out as trading under the name and style of Henry Bischoff & Co., but in the body of the complaint there was no allegation that these three persons were partners, and upon demurrer this omission was held fatal; for, as said by the Chief Justice in that case: “It is only through the partnership that they have any standing in court; hence the existence of the partnership, and that the plaintiffs are members thereof,'are material and essential facts to the plaintiffs’ cause of action and must be alleged and proved. Otherwise, no cause of action is stated.” If, therefore, the existence of the partnership, and the fact that plaintiffs are the persons constituting the same, are facts necessary to be alleged and proved, it follows necessarily that where these allegations are, as in this case, specifically denied, an issue of fact is presented which, in an action like this, for the recovery of money only, is triable by a jury.

The appellants cite and rely upon the cases of Insurance Company v. Turner (8 S. C., 107); Steamship Company v. Rodgers (21 Id., 27); and Palmetto Lumber Company v. Risley (25 Id., 809), for the purpose of showing that a denial of the existence of a corporation is simply a denial that the plaintiff has the legal capacity to sue, and presents no issue which requires the plaintiff to prove its corporate existence. An examination of those cases, however, will show that the point really decided therein is, that a general denial of each and every allegation of the complaint is not sufficient to raise an issue as to the legal capacity of the plaintiff to sue ; but for that purpose there must be a specific denial of the allegation that the plaintiff has been invested with such capacity- — -for instance, that the plaintiff has been duly chartered as a corporation. As is said in Insurance Company v. Turner, supra, and approved in Steamship Company v. Lodgers, supra, the code requires certain defences, for example, that the plaintiff has not legal capacity to sue, shall be set forth either by demurrer or answer, according as the defect may or may not appear on the face of the complaint, and declares that, unless so set forth, they shall be regarded as waived : “The clear intention of these sections is that the defendant shall give, by his demurrer or answer, specific notice that he intends to rely on one or more of these specific defences, if he wishes to make them available. A general denial of all the facts alleged in the complaint is not a compliance with these requirements of the code. The object of these provisions is to relieve the plaintiff from the necessity of preparing to meet such objections on the trial, unless notified by the pleadings that the defendant intends to rely on one or more of them.”

So that even if the denial of the allegation of partnership could be regarded as simply a denial of the plaintiffs’ legal capacity to sue, like the denial of a plaintiff’s corporate existence, which is far from clear, yet the cases relied on would not be sufficient to sustain appellants’ position; for here there was a specific denial of the partnership, whereby plaintiffs were notified that they would be required on the trial to prove their partnership, and the defendant does not rely upon a mere general denial of the allegations of the complaint.

The judgment of this court is, that the order appealed from be affirmed.