Dobbs v. Purington

Action brought to recover the sum of $1,170.36, alleged to be due to the plaintiff for goods sold to the defendants, Purington and Trumbo, by Knight Co., assignors of the plaintiff. The complaint was unverified, and the defendants separately answered by way of a general denial. The court found that the plaintiff's assignors sold and delivered to defendant Trumbo merchandise of the reasonable value of $1,710.78; that he had agreed and promised to pay the same, but that only $540.42 had been paid, and that there was $1,170.36 still due and unpaid from said defendant to plaintiff, and rendered judgment accordingly in favor of the plaintiff and against said defendant Trumbo, and in favor of defendant Purington and against the plaintiff for his costs. The appeal of defendant Trumbo is upon the judgment-roll without a bill of exceptions.

The main contention on the part of the appellant is, that the action being joint against the two defendants, the finding that only one is liable is outside of the issues, and cannot sustain the judgment. At common law, in an action against two or more defendants for an alleged joint undertaking or contract, the judgment was required to be against all the defendants, or in favor of all, and in such case, if the plaintiff failed to establish a joint contract or undertaking, all the defendants were entitled to verdict and judgment, although it were proved that one of them would have been liable if the suit had been brought against him alone. But this is not the rule under the code, nor was it under the old Practice Act. In Rowe v. Chandler,1 Cal. 167, this question of practice was fully considered, after rehearing and further argument in the case, and it was held that where two persons are sued jointly upon a joint contract, judgment may be rendered in favor of plaintiff against one of the defendants, or in favor of one of the defendants against the plaintiff. The code declares: "Judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants; and it may, when the justice of the case requires it, determine the ultimate rights of the parties on both sides, as between themselves. (Code Civ. Proc., sec. 578.) This has always been the rule in this state. (See, further, Lewis v. Clarkin, 18 Cal. 399; People v. Frisbie,18 Cal. 402; Shain v. Forbes, 82 Cal. 583; Bailey v. Hall, 110 Cal. 490. )

The allegations of the complaint are sufficient to support the judgment, and it does not concern the appellant that there is not a separate finding upon the issue made by the separate answer of his co-defendant, Purington. That omission does not in the least prejudice appellant. (Code Civ. Proc., secs. 452-475; IllinoisTrust Co. v. Pacific etc. Ry Co., 115 Cal. 285; Hughes v. Alsip,112 Cal. 587; Horton v. Dominguez, 68 Cal. 642; March v. Barnet,114 Cal. 375.) In the case last cited it was held that upon the appeal from a judgment rendered only against one of several defendants, and in favor of the other defendants, objections made upon demurrer to the complaint affecting the defendants not appealing, and any lack of findings upon issues of fact pertaining to them, will not be reviewed or considered.

The judgment is affirmed.

Garoutte, J., Harrison, J., Henshaw, J., and Beatty, C.J., concurred.