Collins v. Smith
| Citation | 78 Pa. 423 |
| Parties | Collins <I>versus</I> Smith. |
| Decision Date | 17 May 1875 |
| Court | United States State Supreme Court of Pennsylvania |
Before AGNEW, C. J., SHARSWOOD, MERCUR, GORDON, PAXSON and WOODWARD, JJ.
Error to the Court of Common Pleas of Lancaster county: No. 74, to May Term 1875.
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H. M. North (with whom was G. M. Kline,) for plaintiff in error. —The agreement showed that it was the individual contract of Smith; and if it had been joint, it could have been taken advantage of only by plea of abatement: Chorpenning v. Royer, 8 P. F. Smith 474; Bellas v. Fagely, 7 Harris 275.
O. J. Dickey, for defendant in error.
The action being indebitatus assumpsit, and the narr. containing a count for goods sold and delivered, the agreement of August 7th 1857, with the endorsement thereon, and the paper signed by the defendant, also endorsed thereon, was, we think, admissible in evidence as an executed contract for the purchase of the canal-boat named in the agreement, upon the terms therein specified. Giving entire assent to the contention of the defendant that he thereby entered into copartnership with the original contractor, he made the contract his own contract, even if he had not expressly agreed, as he did, "to account to the within-named Abraham Collins for the full amount of the within agreement." Was it any answer to the action to set up that there was another person liable to him on the contract jointly with him? There is nothing better settled than that the non-joinder of a co-contractor can only be taken advantage of by a plea in abatement. It would be an affectation of learning to cite authorities for this proposition. We have our own cases of Bellas v. Fagely, 7 Harris 275; Chorpenning v. Royer, 8 P. F. Smith 474 — full to the point. Nor does it matter that the declaration is upon an individual contract. A joint contract is not at variance with the count. It is still the undertaking of the defendant in solido; though being with another, he has the right to have that other brought in, but only in the very first stage of the cause, by plea in abatement. Had the written evidence been admitted, as it ought to have been, the other offers would have been unnecessary; and certainly the learned judge was right in rejecting them, as the contract was in writing.
Judgment reversed, and a venire facias de novo awarded.
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Snyder v. Bassler Limestone Co.
...Pa. 227. Jefferson Snyder, with him H. A. Honker, for appellee, cited as to prematurity of action: Bellas v. Fagely, 19 Pa. 273; Collins v. Smith, 78 Pa. 423; Backenstoss Stahler, 33 Pa. 251; Good Intent Co. v. Hartzell, 22 Pa. 277; Potter v. McCoy, 26 Pa. 458; Green v. North Buffalo Twp., ......
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Einfeld v. Shermer
...so the question could not properly be raised at the trial: Bellas v. Fagely, 19 Pa. 273; Potter & Colfelt v. McCoy, 26 Pa. 458; Collins v. Smith, 78 Pa. 423. procedure act of May 25, 1887, P. L. 271, did not abolish pleas in abatement nor destroy the distinction between such pleas and pleas......
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Mullen v. McGeagh
... ... raise the question of a mis-joinder or nonjoinder of parties: ... Potter et al. v. McCoy, 26 Pa. 458; Collins v ... Smith, 78 Pa. 423. It is a defense to be raised at the ... threshold; it does not go to the merits and when asserted an ... opportunity is ... ...