Bellas v. Fagely

• Decision Date: 10 October 1852
• Parties: Bellas <I>versus</I> Fagely.
• Court: Pennsylvania Supreme Court

19 Pa. 273

Bellas versus Fagely.

Supreme Court of Pennsylvania.

October 10, 1852.

ERROR to the Common Pleas of Northumberland county.

Pleasants, for plaintiff in error.—It was contended that Kase was competent; that he was called to testify against his interest. If the plaintiff recovered, there might be a recovery against him by the Fagelys pro rata. He was willing to testify: 2 Yeates 163: Id. 324; 6 W. & Ser. 139, Heckert v. Fagely.

Plaintiff could maintain a suit against the defendants on their promise: Gow on Part. 245; 2 Watts 104; 9 Barr 229; 3 Barr 331. A person beneficially interested can support an action on such a promise, unless he is a stranger to the consideration: 6 Watts 182, Blymire v. Boistle; Id. 349, Morrison v. Beckey; 1 Strange 592, and cases there cited.

The opinion of the Court, filed October 10, was delivered by WOODWARD, J.

The writ in this case issued against Reuben & William Fagely, the former of whom alone was served. When the cause was here last year, it was treated as an action against one firm on a promise made by another firm, and it was ruled that an action would not lie against the Fagelys, because the evidence greatly preponderated in showing that the promise declared on was made in 1843 by the firm of Fagely, Kase & Co., and before the firm of Fagely & Co. was formed. In effect the decision made the non-joinder of Kase fatal to the plaintiff's action, though the partner sued had failed to plead it in abatement, and had pleaded the general issue: 5 Harris 70. The learned Judge who delivered the opinion of this Court, did indeed say that if the Fagelys had been sued as "the firm of Fagely, Kase & Co., the contract would have to be proved as laid; but in that case, if they wished to take advantage of the non-joinder of one member of the firm, they would have to plead in abatement." In the case supposed, there would have been no non-joinder to plead in abatement. The non-joinder of Kase was the peculiarity in the cause, and to turn the plaintiff out of Court on that account, was, in substance, to treat the plea of non assumpsit as a plea in abatement. There is no rule of pleading better defined in the elementary books, or better supported by authority, than that if a person be omitted as defendant who ought to be joined in any action founded on a joint contract, whether on a specialty or not, the objection can be taken advantage of only by a plea in abatement. The defendant slipped his time for this plea when he pleaded the general issue. The contract laid and proved was made by Fagely whilst the firm of Fagely, Kase & Co. was in existence, and before that of Reuben Fagely & Co. was formed. When the Fagelys were sued on that contract, they were liable on the principle that every partner is liable for the contracts of the firm, and if they wanted the benefit of the plaintiff's mistake in not joining Kase in the action, they should have pleaded it at the proper time in abatement. The fact that they subsequently formed a partnership between themselves was no defence to...