Clements v. Miller

• Decision Date: 11 June 1904
• Citation: 100 N.W. 239,13 N.D. 176
• Parties: CLEMENTS v. MILLER et al.
• Court: North Dakota Supreme Court

13 N.D. 176

100 N.W. 239

CLEMENTS

v.MILLER et al.

Supreme Court of North Dakota.

June 11, 1904.

Syllabus by the Court.

1. All parties to a joint contract should be made parties defendant in an action to enforce the obligations imposed by such contract.

2. In the absence of language in a contract showing a contrary intention, the obligations of parties to a contract are presumed to be joint, and not several.

3. The obligations assumed by parties to a joint contract of hiring are the same as those assumed by partners in a contract of similar nature, and are joint obligations.

4. Evidence considered, and held, that a copartnership relationship was not created, and that the obligations created by the contract involved in this action were joint, and that all parties thereto should be made parties in an action on the contract.

Appeal from District Court, Pembina County; W. J. Kneeshaw, Judge.

Action by J. H. Clements against A. L. Miller and others. Judgment for plaintiff, and defendants appeal. Reversed.Bosard & Bosard, for appellants. C. A. M. Spencer, for respondent.

MORGAN, J.

The complaint alleges a cause of action against the defendants for materials furnished them and for services rendered for them, in all of the value of $157.65. The defendants' answer admits that plaintiff furnished materials and performed services for them and for other persons, and alleges that such other persons are necessary parties to the action, and that they are interested with defendants in the result thereof. In such answer the names of the persons claimed to be necessary parties are given. The answer further alleges that nothing is due on the part of any one for such services, on account of damages incurred by the performance of such services in an imperfect manner, and on account of plaintiff's incompetence exceeding the contract price of the services. The issues were submitted to a jury, and they found a verdict in plaintiff's favor for the full amount claimed. A motion for a new trial was made, based on a settled statement of the case, and was denied. Judgment was rendered on the verdict, and defendants appeal from the same.

The principal specifications of error relate to a defect of parties defendant. The nonjoinder of the parties named as necessary parties was claimed as fatal to recovery against the three defendants served with summons, by motion at the close of the testimony, and on the motion for a new trial by specifications that the evidence is insufficient to sustain a verdict against the three defendants. Exceptions were also taken to the charge of the court submitted to the jury upon the theory that the defendants would be liable if the contract was several, or joint and several. We think that the specification that the evidence is insufficient to sustain a verdict against these defendants should have been sustained, and a new trial granted. The nonjoinder of the persons named in the answer as necessary parties defendant is fatal to the recovery against the defendants.

The record discloses the following facts: About fifteen of the citizens of St. Thomas, N. D., by joint action and by joint contract or subscription, built a telephone system in the village for the use of subscribers only. The subscribers agreed in writing to pay their pro rata share of the cost of the materials for use in such system, and for the work of putting such system in working operation. After such system was constructed and in operation, it was ascertained that the cost thereof to each subscriber was $53, and the same was paid by each of said subscribers. Later, and in September, 1902, the system needed repairing and extension, as other persons desired telephones placed in their houses and became subscribers to the contract, agreeing that they would pay said sum of $53 if the system was extended to their houses. There were about 25 additional subscribers in September, 1902. The subscribers met, and appointed the defendants herein and one Nelson managing officers, and also a board of directors, consisting of the four persons who were officers and one T. A. Miller. These officers, as a board of control or directors, had authority to act for all the subscribers and acted for them in the management of the system, and had full control of it for the subscribers. The plaintiff dealt with this board entirely in the making of the contract and in carrying on the work that he was to do under the contract. The question is raised by the answer as to whether there is a defect of parties. Inasmuch as the complaint does not show upon its face that there is such a defect of parties, it is therefore properly raised by answer, and, if not so raised, no objection can thereafter be made that there is a defect of parties defendant. Section 5272, Rev. Codes 1899. The subscribers to this contract for a telephone system did not become associated together by securing a charter as a corporation, nor did they enter into copartnership articles, nor were their relations to each other or to the public, or their character when acting in a collective capacity as a body or through authorized agents, defined by any writing or oral agreement. The only writing spoken of in the record is the contract signed by the subscribers, agreeing to pay the cost of putting in telephones for them at the price therein specified. Who owned the property, how it could be transferred from one to another, what became of a subscriber's interest upon his removal from the village or upon his withdrawal from the company, how he might withdraw, or how new members may be added, are not hinted at in the record. These persons associated themselves together for the purpose of securing for one another a local telephone system. One witness, an officer of the company, says: “This local telephone exchange consists of a number of citizens of St. Thomas that went in to put in telephones for the convenience of those who were subscribers. We called it a ‘joint-stock company’-that is what we called it. Each man paid his share. We didn't know what it would cost, but we had a writing that we would put it in and pay our share, which we did.”

The record shows that they derived no pecuniary profit and were not to derive any profit out of the operation of the system. No revenue was to come in from the operation of the system. The system was an automatic telephone system, and no expense was incurred in its operation except for repairs. It does not, therefore, constitute a partnership under our statute defining a partnership as an association of persons for the purpose of carrying on business together and dividing its profits between them. Section 4370, Rev. Codes 1899. There is nothing in the record to show that the parties intended that their relations in respect to this undertaking should be those of partners. No one of the persons thus associated together had any individual authority in the matter. All power and authority was specially delegated to the so-called “board of control.” If these parties had...