Jordison v. Jordison Bros., 41695.
| Decision Date | 07 March 1933 |
| Docket Number | No. 41695.,41695. |
| Citation | 247 N.W. 491,215 Iowa 938 |
| Parties | JORDISON v. JORDISON BROS. ET AL. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Webster County; O. J. Henderson, Judge.
Action against a partnership, Jordison Brothers, and the individual members of the firm, for a loan plaintiff claims to have made on May 6, 1929, to the partnership by a verbal contract. There was a verdict for the plaintiff, and from judgment thereon, Jordison Brothers and three of the partners appeal.
Affirmed.
D. M. Kelleher, of Fort Dodge, for appellants.
Thomas & Loth, of Fort Dodge, for appellees.
The defenses made are: (1) A specific and general denial that any loan has been made; (2) if any money were advanced by the plaintiff, it was to her husband individually and not to the copartnership; (3) a counterclaim was pleaded.
Briefly stated, the facts are as follows:
Arthur, John, Ethel Jordison, and Sarah Anderson are brothers and sisters, who, under the firm name of “Jordison Brothers,” operated a retail store in the village of Coalville from June, 1929 to May 6, 1931, when the store was closed. Lillian Jordison, the plaintiff, is the wife of Arthur Jordison, one of the members of the firm. Her claim is that she loaned to the partnership the sum of $500 on May 6, 1929, and was to receive 7 per cent. interest on the same. As above indicated, there was a defense on the part of the defendants, and the jury returned a verdict in favor of the plaintiff. There was no question raised as to the sufficiency of the testimony to support the verdict.
As noted, the partnership of Jordison Brothers and the four members of the firm are made parties defendant herein, one of whom, Arthur, is the husband of the plaintiff. The Jordison Brothers and three of the members, aside from Arthur, filed answer, in the third division of which a counterclaim is plead, setting up that Jordison Brothers sold and delivered family necessities for the family of Lillian and Arthur Jordison, in an amount in excess of the claim of the plaintiff, claiming that the Jordison Brothers and these defendants are entitled to an offset and counterclaim on account of family necessities sold to Arthur Jordison, and praying that the plaintiff's petition be dismissed.
[1] On motion, this counterclaim was withdrawn from the consideration of the jury, and this action on the part of the court is claimed to be erroneous. Such action of the court seems to have been taken, not because of want of proof of the furnishing of the family necessities, but upon the ground that the account pleaded for such necessities, under the situation in the case, was not pleadable as a counterclaim.
Section 10459, Code 1931, reads as follows: “The reasonable and necessary expenses of the family and the education of the children are chargeable upon the property of both husband and wife, or either of them, and in relation thereto they may be sued jointly or separately.”
Under this section, the husband and wife are jointly or severally suable for family expenses. The firm of Jordison Brothers, as such, then would have a right to sue both jointly or to bring a separate and independent action against each, and if this action were only an action between Lillian Jordison and the partnership, the Jordison Brothers, they undoubtedly would have a right to use this account as a counterclaim; but, as noted above, the action was not only against the partnership, but also all of the partners are named as parties defendant.
Section 11151, Code 1931 provides, in part:
“Each counterclaim * * * must be: * * *
3. Any new matter constituting a cause of action in favor of the defendant, or all of the defendants if more than one, against the plaintiff. * * *”
It is quite apparent under this section that their cause of action of which they seek to avail themselves by way of counterclaim must be in favor of all of the defendants against the plaintiff. It is quite evident that the individual partners who are part of the defendants, as such, had no cause of action whatever against the plaintiff on this account for family expenses. More than this, the defendant Arthur Jordison could not sue the wife, Lillian, for such family expenses. Johnson v. Barnes, 69 Iowa, 641, 29 N. W. 759.
In the case of Shaw v. Ioerger, 203 Iowa, 1256, 212 N. W. 719, 721, we discussed this question and said: ...
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