Blythe v. Cordingly

• Citation: 20 Colo.App. 508,80 P. 495
• Parties: BLYTHE et al. v. CORDINGLY et al.
• Decision Date: 13 March 1905
• Court: Court of Appeals of Colorado

80 P. 495

20 Colo.App. 508

BLYTHE et al. v. CORDINGLY et al.

Court of Appeals of Colorado

March 13, 1905

Error to District Court, Arapahoe County.

Action by James M. Blythe and another against Alfred Cordingly and another. Judgment in favor of defendants, and plaintiffs bring error. Reversed.

E.T Wells and Jno. G. Taylor, for plaintiffs in error.

Stuart D. Walling, for defendant in error Alfred Cordingly.

MAXWELL J.

The complaint named "Alfred Cordingly and Abraham Goodstein late copartners under the firm name of Cordingly &amp Goodstein," as defendants. It alleged eight causes of action. The first seven were based upon promissory notes alleged to have been made by the defendants "under their firm name of Cordingly & Goodstein." The eighth cause of action alleged the execution by "the firm of Cordingly & Goodstein" of six promissory notes, identical in terms with those alleged in the first six causes of action; that such promissory notes were indorsed by their respective payees to Fannie Goodstein and Millie Goodstein, who, without consideration, transferred and delivered the said six promissory notes to one John T. Deweese, to hold as their trustee; that Deweese commenced an action in the district court of Jefferson county against the defendants under the firm name of Cordingly & Goodstein, and caused summons to be served upon Abraham Goodstein, and, although no process was ever served upon said Cordingly, nor any appearance of said Cordingly made or entered in said action, said district court on or about November 5, 1894, rendered judgment in said action in favor of said Deweese, and against said Alfred Cordingly and Abraham Goodstein, copartners as Cordingly & Goodstein, for the sum of $9,406.18 and costs; that January 29, 1895, said Deweese assigned said judgment to Millie and Fannie Goodstein, and on or about February 13, 1895, said Millie and Fannie Goodstein and said Deweese, "although no sum of money or other consideration whatsoever was ever paid on said judgment," caused satisfaction thereof to be entered in said district court; that November 1, 1898, said Millie and Fannie Goodstein, for divers good and sufficient considerations, assigned and set over to the plaintiffs the said judgment and the promissory notes of said Cordingly & Goodstein whereon the said judgment was founded. The prayer was that said satisfaction of judgment be vacated, and that plaintiffs have judgment against the defendants for the amounts of the several promissory notes, with interest, alleged in the first seven causes of action. Abraham Goodstein did not appear in the court below, and, so far as the record shows, no summons was served upon him. The separate answer of Alfred Cordingly denied the allegations of the complaint, and set up several distinct affirmative defenses; alleging therein fraud, want of consideration, accord and satisfaction, and release. Plaintiffs filed a replication. From the admissions in the replication and the uncontradicted averments of the answer it appears that the notes in the first six causes of action were identically the same as the notes described in the eighth cause of action, upon which the judgment of the district court of Jefferson county was rendered in favor of Deweese, and that all of such notes were included in said judgment; that the defendant Abraham Goodstein was served with summons, and entered his appearance and the appearance of said firm in said action; that judgment was entered therein on the 5th day of November, 1894, for the sum of $9,406.18; that on the 13th day of February, 1895, Deweese and Millie and Fannie Goodstein signed, sealed, acknowledged, and delivered to the defendants therein their release of said judgment, and therein and thereby acknowledged full payment and satisfaction of the same, and fully and forever discharged and released the same; that on the date of the release, to wit, February 13, 1895, the same was filed with the clerk of the district court of Jefferson county, and thereupon satisfaction of said judgment was duly entered upon the judgment docket of said court; that the amount of the promissory note alleged in the seventh cause of action included the promissory notes alleged in the first six causes of action, with interest, and was the amount for which judgment had been rendered by the district court of Jefferson county.

The case having been reached for trial, the defendant Alfred Cordingly moved the court for judgment on the pleadings, which motion was granted upon the grounds (1) that the six promissory notes alleged in the first six causes of action were identical with the six notes described in the eighth cause of action, and that such notes were merged in the judgment of the district court of Jefferson county, and could not be made the basis of another judgment against the defendants therein; (2) that the said judgment had been satisfied and discharged by the deed of release of said judgment executed by Deweese and Millie and Fannie Goodstein, and the entry of satisfaction on the judgment docket of said district court, which release and satisfaction could not be impeached, avoided, or set aside for the alleged want of consideration; (3) that the amount of the alleged promissory note set forth in the seventh cause of action is identically the same as alleged in the promissory notes described in the first six and the eighth causes of action, and was without any good or valid consideration.

Plaintiffs in error, in their brief, say: "Two questions are therefore presented: First. Whether a judgment against one of two makers of a promissory note, in an action against both, merges the cause of action. Second. Whether a release of a judgment, and the entry of satisfaction on the record, is effectual, when given and made without consideration?"

We think the record presents but one question--whether a judgment on promissory notes executed by a copartnership, service being had on one partner only, merges the partnership notes in the judgment. The second question above presented by plaintiffs in error is not in the case, as they are estopped to raise the same, as will hereinafter appear.

It is the settled law of this state that the only judgment which can be rendered against a copartnership on a firm debt or obligation is one against the copartnership jointly, and the partners summoned or appearing, whether the summons is served upon all or one or more of the defendants. Craig v. Smith, 10 Colo. 220, 15 P. 337; Sawyer v. Armstrong, 23 Colo. 287, 47 P. 391; Ellsberry v. Block, 28 Colo. 477, 65 P. 629; Dessauer v. Koppin, 3 Colo.App. 115, 32 P. 182; Peabody v. Oleson, 15 Colo.App. 346, 62 P. 234. In Ellsberry v. Block, supra, in discussing the force and effect of sections 14, 43, 235-240, Mills' Ann.Code, the court said: "The purpose of these provisions was to provide a method of procedure whereby a partnership might be sued upon its obligations, its members brought into court, judgment rendered which would bind the firm and individuals served, and that those not served with summons might be subsequently brought in, and a judgment entered which would be personally binding upon them. These provisions do not alter any of the fundamental principles of the law as to the joint liability of partners, but are merely intended to change the common law in point of practice, for, according to the rules of the latter, in an action at law against several defendants jointly liable only, all must be served with process before judgment could be rendered."

Plaintiffs in error urge that Exchange Bank v. Ford, 7 Colo. 314, 3 P 449, declares that a partnership note is not a joint contract, under our laws. We do not believe that this case announces such doctrine. It was there held that the judgment rendered against one of several signers of a promissory note given for a firm debt was a bar to a subsequent recovery against another partner upon...