Fetz v. Clark

• Decision Date: 01 January 1862
• Parties: JOSEPH FETZ vs. C. S. CLARK & CO.
• Court: Minnesota Supreme Court

7 Minn. 159

JOSEPH FETZ vs. C. S. CLARK & CO.

Supreme Court of Minnesota.

Appeal from order of the district court, Chisago County.

Points and authorities for appellants: —

Under the pleadings in this action, one of the material issues of fact formed was, as to the partnership of the defendants. This was alleged in the complaint, and the defendants, by denying each and every allegation in the complaint, put this as well as every other material allegation in the complaint in issue. Benedict v. Seymour, 6 How. Pr. R. 298. It follows, therefore, that if the allegation was material, it must be proven by the plaintiff, to enable him to recover, and if proof on the part of the plantiff was necessary, the defendants, under their general denial, could controvert any fact proved. That their allegation of partnership is material, we think beyond question. Caldwell v. Bruggerman, 4 Minn. [270]; Bond v. Corbett, 2 Minn. [248].

Points and authorities for respondent: —

1. That when an action is brought against certain parties, — partners composing a certain firm as such — the answer of said parties, containing a general denial merely, will be taken as their answer as such partners, and as an admission that the action has been correctly brought. Gould's Pl. 44, § 37; id. 272, § 104; Gardiner et al. v. Clark, 6 How. Pr. R. 449; King v. Vanderbilt, 7 How. Pr. R. 385; Van Sant. Pl. 385-89; Gould's Pl. 278, § 114; Fosgate et al. v. Herkimer M. & H. Co. 12 N. Y. 580; Ingraham v. Baldwin, 12 Barb. 9; 2 Duer, 160; 2 How. Pr. R. 258.

2. That the objections of nonjoinder or misjoinder cannot be taken as defenses in the general answer, but as objections by answer, and the matter must be set up alone, and alleged specially, to be made available. Gardiner et al. v. Clark, 6 How. Pr. R. 449; Comp. Stat. 540, §§ 66, 67; Catlin v. Hansen, 1 Duer, 309; Fowler v. Kennedy, 2 Abb. Pr. R. 351; Brainard v. Jones & Provost, 11 How. Pr. R. 569.

3. That neither the partnership of the defendants, nor the character in which they are sued, is essential to the plaintiff's right of recovery in this action, the only matter in that regard being the joint liability of the defendants.

Wm. M. McCluer, for appellants.

L. R. Cornman, for respondent.

EMMETT, C. J.

This was an action brought against the defendants as partners, to recover a balance alleged to be due for work and labor done by the plaintiff for the defendants as such partners, and at their request. The complaint alleges the partnership in terms. The answer denies each and every allegation of the complaint.

On the trial the plaintiff gave evidence of the amount and value of the labor and services mentioned in the complaint and that he was employed so to work and labor by Oscar A. Clark, one of the defendants, nothing at the time being said about a copartnership with any one; but he also introduced evidence tending to show that the other defendant afterwards acknowledged that he was interested as a partner with said Oscar in the business in which the said plaintiff was employed. The defense then introduced defendant Cornelius S. Clark as a witness, who denied ever having told the plaintiff that he was in partnership with Oscar, as stated in the plaintiff's testimony. He was then asked whether he was ever in partnership with said Oscar in the business in which the plaintiff had been employed; and whether he and said Oscar, as partners or otherwise, ever employed the plaintiff to do any work. These questions were severally objected to by the plaintiff as irrelevant and immaterial, and ruled out by the court; to which exception was taken. The defendants next offered to prove that the plaintiff had stated under oath, in a certain other action, that he did not know which of the Clarks he had done the work for, nor whether he had commenced suit therefor against C. S. Clark alone, or C. S. Clark & Co. To this also the plaintiff objected. The objection was sustained by the court, and the defendants excepted. The testimony being closed, the court submitted the case to the jury, with the charge or instruction, "that for the purpose of this action, the partnership of the defendants is admitted as stated in the complaint." To this charge the defendants excepted. The jury found for the plaintiff to the amount claimed in the complaint, and the defendants appeal from the judgment entered thereon.

We think the court erred, not only in rejecting the evidence offered to negative the partnership, but also in the instruction given to the jury. The court naturally fell into this error from treating the denial of this answer as amounting only to the general issue, and the objection that the defendants were not in partnership, as a mere plea to the disability of the person of the defendants, which, according to the old rules of pleading at common law, would be waived, or renounced by the plea of the general issue. Under the old system, the general issue, though in some actions, as in assumpsit and trespass on the case, amounting to almost a denial of the whole declaration, was in others, as in covenant, debt, detinue, replevin and trespass, merely a denial of the principal fact upon which the declaration was founded. It was but natural, therefore, that the courts should hold that all traversable allegations not coming fairly within the principal fact thus denied, should be taken as confessed, under the rule that "every pleading is taken to confess such traversable matters alleged on the other side as it does not traverse." Steph. on Plead. 217. We have, however, no such plea as that of the general issue. The denial in general terms of each and every allegation of the complaint, is not confined in any case to a denial of the principal fact on which the complaint is founded, but is equivalent to a denial of each material allegation thereof, just as though the pleader had traversed the several allegations in detail. Such is the plain interpretation of a denial in these terms, if not indeed almost the exact language. The defendant denies each and every allegation of the complaint. And if each and every of such allegations are untrue, we do not see why the defendant may not say so at once, and put the plaintiff to the proof of each, as effectively as by denying the several allegations specifically and in detail. At any rate it is now too late to debate of the sufficiency of such a general denial, as this court has repeatedly recognized it as sufficient under our system. It goes to each and every fact alleged. It cannot be said to admit the existence or truth of one allegation more than another — to admit indeed the truth of anything alleged. It is a denial of all, or of none, and must therefore effectually put in issue each specific allegation, or else it is an insufficient traverse of any and every fact alleged.

Now, had the defendants specifically and in detail denied the allegations of the complaint, it would not, I think, have been seriously contended that such an answer did not put in issue the partnership as well as the joint promise or contract alleged, and unless the issue, as to the partnership, was immaterial, it will be...