Brooks v. Ulanet.

• Decision Date: 04 October 1949
• Docket Number: No. 1225.,1225.
• Citation: 68 A.2d 701
• Parties: BROOKS v. ULANET.
• Court: Vermont Supreme Court

68 A.2d 701

BROOKS

v.ULANET.

No. 1225.

Supreme Court of Vermont.

Oct. 4, 1949.

An action by Charles H. Brooks against Herman Ulanet for labor and materials and for breach of contract.

The Windsor County Court, Stephen S. Cushing, Presiding Judge, permitted the pleadings to be amended to show the action to read ‘Wilmer I. Brooks and Charles H. Brooks, copartners under the firm name and style of Brooks and Brooks' and the defendant brought exceptions.

The Supreme Court, Blackmer, J., held that the amendment was improperly permitted and reversed and remanded the cause for new trial on the pleadings as they stood prior to the amendment.

O. Fay Allen, Jr., Chelsea, F. Ray Keyser, Chelsea, for plaintiff.

Bove, Billado & Dick, Rutland, for defendant.

Before SHERBURNE, C. J., and JEFFORDS, CLEARY, ADAMS and BLACKMER, JJ.

BLACKMER, Justice.

This is an action in contract brought originally by Charles H. Brooks. The complaint was in two counts, the first being the common counts with specification for labor and materials furnished, the second being for breach of contract. The only question involved relates to an amendment which defendant claims improperly substituted a new party.

Charles H. Brooks was improved as the first witness. During his cross-examination the following took place (Counsel at the bench):

‘Mr. Bourdon: We submit that there is considerable question as to whether or not this person is in fact the plaintiff here. There has been evidence admitted that the pay for the job was received by the son, Wilmer, and we raise that question and ask that the plaintiff having failed at this point to establish a verbal contract, that the matter be dismissed.

‘The Court: Well, it has occurred to the Court that perhaps the relationship between this man and his son is that of partners.

‘Mr. Bourdon: He hasn't testified.

‘Mr. Keyser: He took it over and so testified.

‘Mr. Bourdon: Nothing yet, as I recollect, with relation to partnership.

‘Mr. Keyser: He has told you any number of times that they were a company.

‘The Court: Now that being the case, the boy ought to be in here as party plaintiff to this action.

‘Mr. Bourdon: Well, we don't quite see at this time. I understand how one can be named as a party defendant but I question some if they can insert a new plaintiff at this time.

‘The Court: I think the statute is broad enough. (Recess.)

‘The Court: It has been called to the Court's attention, and it is apparent to the Court itself from the testimony thus far, that another party plaintiff is necessary to a proper adjudication of this case, and under the statute the Court orders the present plaintiff to join as co-plaintiff his son, Mr. Brooks. Now if Mr. Brooks is willing to become party to this action without the necessity of process as prescribed by statute, he, being in court, can so state.

‘Mr. Keyser: The record should show that it is Wilmer I. Brooks. (Mr. Wilmer I. Brooks rises and states as follows) ‘I consent to be a part of this and waive all notice.'

‘The Court: Very well. Then the record may show the pleadings in this case are amended by introducing as co-plaintiff Wilmer I. Brooks, and the action be amended to read, ‘Wilmer I. Brooks and Charles H. Brooks, co-partners under the firm name and style of Brooks and Brooks.’ To the action of the Court, the defendant may have an exception on all grounds.

Defendant urges that the action of the court constituted a substitution of a partnership composed of Charles H. and Wilmer I. Brooks for the individual plaintiff Charles H. Brooks. Plaintiff contends that the action of the court joined Wilmer I. Brooks as a coplaintiff under V.S. § 1669, Rev.1947, and ordered the title, and that alone, to be amended to show that these two plaintiffs were partners.

It is to be remarked that the court in its first comment referred to the partnership relation, and next stated ‘that being the case,’ Wilmer I. Brooks should be a party plaintiff. Thereafter the court ordered that the ‘pleadings be amended by introducing as co-plaintiff Wilmer I. Brooks, and the ‘action’ be amended to read Wilmer I. Brooks and Charles H. Brooks, co-partners under the firm name and style of Brooks and Brooks.' Plaintiff in his brief treats the word ‘action’ as equivalent to ‘title’ (of the case). But this treatment is too narrow, for the word ‘action’ in its ordinary sense includes all the formal proceedings in a court of justice attendant upon on the demand of a right made by one person of another. Bouvier's Law Dict., Rawles Third Rev., page 128. To the same effect is Ballentine's Law Dict., page 21. The word ‘action’ therefore includes the word ‘pleading’ which the court had just used.

The court's use of the words ‘coplaintiff’ and ‘party plaintiff’ are to be construed, we think, in the light of this Court's statement in Lewis & Co. v. Locke, 41 Vt. 11, 13: ‘But where they (partners) bring a suit and come into court as plaintiffs, the law requires that they shall in the writ insert their individual names, and describe themselves as co-partners doing business under the name and style of * * *.'

Further in the same connection the court referred to its action as being under ‘the statute’, but made no mention of any particular statute. The court might possibly have had any one of three in mind: V.S. § 1618, Rev.1947, permitting amendments of substance, V.S. § 1620, Rev.1947, providing that actions shall not be defeated for nonjoinder or misjoinder of parties, or V.S. § 1669, Rev.1947, providing for the joinder of additional parties plaintiff or defendant in actions founded on a joint contract. An examination of the transcript to the time the court took the action being considered discloses no evidence of an individual contract between Wilmer I. Brooks and the defendant, nor of a joint contract between Charles H. and Wilmer I. Brooks and the defendant. There is evidence, however, to the effect that the Brookses were partners. Partnership liability is a different thing from joint liability. Dunbar v. Farnum, 109 Vt. 313, 318, 324, 196 A. 237, 114 A.L.R. 996.

Therefore for the reasons that the court appreciated the potential partnership relation, that the law and custom requires both partner's names to appear in the pleadings, and that the evidence discloses nothing to make V.S. §§ 1620 or 1669, Rev.1947, applicable, we conclude that the trial court intended a substitution of parties under the authority of V.S. § 1618, Rev.1947. More will be said of this last mentioned statute hereafter.

The next inquiry is whether it is permissible, during trial, to substitute for an individual plaintiff a partnership of which such individual plaintiff is a member. Under the common law an entire change of plaintiffs by the substitution of new persons in place of those who originally brought the suit is not allowable. 39 Am.Jur. 966. In addition, although it is true that a partnership is not an entity to the full extent that is a corporation, State v. Cadigan, 73 Vt. 245, 251, 50 A 1079, 57 L.R.A. 666, 87 Am.St.Rep. 714, it has long been settled in this jurisdiction that a partnership is a legal entity, separate and apart from the individuals composing it. Dunbar v. Farnum, 109 Vt. 313, 321, 196 A. 237, 114 A.L.R. 996; Walker v. Wait, 50 Vt. 668, 676; Glass et al. v. Newport Clothing Co., 110 Vt. 368, 372, 8 A.2d 651. Consistent with these rules and determinative of the present case is Emerson v. Wilson, 11 Vt. 357, 34 Am.Dec. 695. There the suit was brought before a justice of the peace by Emerson and Godfrey, a partnership. The justice amended the writ by striking out Godfrey's name, leaving Emerson the sole plaintiff. It was held by this Court that the amendment was improper because it changed both the parties and the cause of action. Here a partnership was substituted for an individual plaintiff, but the principle of law is the same. As stated in Emerson v. Wilson, supra, 11 Vt. at page 359, ‘a suit in the name of one of the members of the firm, or for a cause of action accruing to him alone, is entirely different from a suit in the name of the firm’. Accord, Dunbar v. Farnum, supra.

Emerson v. Wilson, supra, on which we base this decision, was cited with approval in Bowman v. Stowell, 21 Vt. 309, 313-314, and Holt v. Thatcher, 52 Vt. 592, 594. It is true, and understandable, that there are contrary arguments, but the case is firmly enterenched in our law.

V.S. § 1618, Rev.1947, on which, as we have seen, the trial court relied, provides that pleadings may be amended in matters of substance at any stage of the proceedings under the direction and in the discretion of the court. This statute is no help to plaintiff. It has been repeatedly held that an amendment...