Mason v. Eldred Et Al

Decision Date01 December 1867
Citation73 U.S. 231,18 L.Ed. 783,6 Wall. 231
PartiesMASON v. ELDRED ET AL
CourtU.S. Supreme Court

On certificate of division between the judges of the Circuit Court for Wisconsin. A statute of Michigan, known as 'the Joint Debtor Act,'1 thus enacts:

1. 'In actions against two or more persons jointly indebted upon any joint obligation, contract, or liability, if the process issued against all of the defendants shall have been duly served upon either of them, the defendant so served shall answer to the plaintiff, and in such case the judgment, if rendered in favor of the plaintiff, shall be against all the defendants, in the same manner as if all had been served with process.

2. 'Such judgment shall be conclusive evidence of the liabilities of the defendant who was served with process in the suit, or who appeared therein; but against every other defendant, it shall be evidence only of the extent of the plaintiff's demand, after the liability of such defendant shall have been established by other evidence.'- Other sections provide that execution shall be issued in form against all of the defendants; that the exec tion shall be levied on the sole property of the defendant served, or on the joint property of all the defendants, and that the plaintiff may sue out a scire facias against the defendants not served to show why the plaintiffs ought not to have execution against them, the same as if they had been served with the process by which the suit was commenced.

With this statute in force in Michigan, Mason sued, in the Circuit Court for Wisconsin, Anson Eldered, Elisha Eldred, and one Balcom, trading as partners, upon a partnership note of theirs. Process was served on Anson Eldred alone, who alone appeared, and pleaded non assumpsit. On the trial, the note being put in evidence by the plaintiff, Eldred offered the record of a judgment in one of the State courts of Michigan, showing that Mason had already brought suit in that court on the same note against the partnership; where, though Elisha Eldred was alone served and alone appeared, judgment in form had passed against all the defendants for the full amount due upon the note.

The evidence being objected to by the plaintiff, because not admissible under the pleadings, and because it appeared on the face of the record that there was no judgment against either of the defendants named except Elisha Eldred, who alone, as appeared also, was served or appeared, and because it was insufficient to bar the plaintiff's action, the question whether it was evidence under the issue in bar of, and to defeat a recovery against Anson Eldred, was certified to this court for decision as one on which the judges of the Circuit Court were opposed.

Mr. G. W. Lakin, for the plaintiff:

1. The record offered was inadmissible under the plea of non assumpsit. That plea puts the plaintiff to the proof of all that he alleges. It makes no allusion to a 'former recovery,' nor to any claim that the supposed original liability has assumed a higher form. It is also at variance with the rule, that a matter of defence, which admits the facts stated in the declaration, but avoids them, should be specially pleaded.2

2. There is a distinction between copartnership promissory notes, or contracts, and ordinary joint notes, or contracts. The former are in effect several, as well as joint.

3. A judgment against one joint debtor, is no bar to a suit against the other, even though pleaded. In Sheehy v. Mandeville & Jamesson,3 in this court, the plea interposed by Mandeville, was, in substance, that, in a former suit, judgment had been rendered in favor of Sheehy, against Jamesson (his partner) on the same note. The note had been signed, 'Robert B. Jamesson.' In the first action it was treated as the note of Jamesson alone, and judgment rendered against him. In the second as the note of Mandeville & Jamesson, trading under the name of 'Robert B. Jamesson.' There was a judgment against Jamesson, and this court decided it to be proper to give judgment against the other partner. This is the point presented in the case at bar. There have been many attempts in State courts, to overturn this decision, and sometimes, in the Federal courts, to evade it, by getting up and drawing fancied distinctions, but it stands, because founded in good reason. 'In point of real justice,' says Marshall, C.J., 'there can be no reason why an unsatisfied judgment against Jamesson should bar a claim upon Mandeville.' In Dennett v. Chick,4 a case in Maine, the same doctrine was held.

4. The statute of Michigan, correctly construed, negatives the conclusion that the judgment against Elisha Eldred is a bar to an action against Anson Eldred.5

Mr. J. W. Cary, contra, contended:

1. That under the general issue, anything was admissible that showed that no cause of action existed at t e time of bringing the suit.

2. That whether Sheehy v. Mandeville, was, or was not analogous in all its features to the case at bar, it had, as generally understood, never been well received; and that numerous cases establishing a better principle were arrayed against it.

3. That the statute of Michigan affirmed the conclusion, that the judgment in Michigan was a bar to an action against Anson Eldred in Wisconsin. Why else did it permit the joint property of the defendants to be bound by this judgment?

Mr. Justice FIELD, after stating the case, delivered the opinion of the court, as follows:

The counsel of the plaintiff suggests that the question presented by the certificate of the judges of the Circuit Court is divisible into two parts: 1st. Whether the record of the judgment recovered in Michigan was admissible under the pleadings; and, 2d. Whether, if admissible, the judgment constituted a bar to the present action. We think, however, that the admissibility of the record depends upon the operation of the judgment.

If the note in suit was merged in the judgment, then the judgment is a bar to the action, and an exemplification of its record is admissible, for it has long been settled that under the plea of the general issue in assumpsit evidence may be received to show, not merely that the alleged cause of action never existed, but also to show that it did not subsist at the commencement of the suit.6 On the other hand, if the note is not thus merged, it still forms a subsisting cause of action, and the judgment is immaterial and irrelevant.

The question then for determination relates to the operation of the judgment upon the note in suit.

The plaintiff contends that a copartnership note is the several obligation of each copartner, as well as the joint obligation of all, and that a judgment recovered upon the note against one copartner is not a bar to a suit upon the same note against another copartner; and the latter position is insisted upon as the rule of the common law, independent of the joint debtor act of Michigan.

It is true that each copartner is bound for the entire amount due on copartnership contracts; and that this obligation is so far several that if he is sued alone, and does not plead the non-joinder of his copartners, a recovery may be had against him for the whole amount due upon the contract, and a joint judgment against the copartners may be enforced against the property of each. But this is a different thing from the liability which arises from a joint and several contract. There the contract contains distinct engagements, that of each contractor individually, and that of all jointly, and different remedies may be pursued upon each. The contractors may be sued separately on their several engagements or together on their joint undertaking. But in copartnerships there is no such several liability of the copartners. The copartnerships are formed for joint purposes. The members undertake joint enterprises, they assume joint risks, and they incur in all cases joint liabilities. In all copartnership transactions this common risk and liability exist. Therefore it is that in suits upon these transactions all the copartners must be brought in, except when there is some ground of personal release from liability, as infancy or a discharge in bankruptcy; and if not brought in, the omission may be pleaded in abatement. The plea in abatement avers that the alleged promises, upon which the action is brought, were made jointly with another and not with the defendant alone, a plea which would be without meaning, if the copartnership contract was the several contract of each copartner.

The language of Lord Mansfield in giving the judgment of the King's Bench in Rice v. Shute,7 'that all contracts with partners are joint and several, and every partner is liable to pay the whole,' must be read in connection with the facts o the case, and when thus read does not warrant the conclusion that the court intended to hold a copartnership contract the several contract of each copartner, as well as the joint contract of all the copartners, in the sense in which these terms are understood by the plaintiff's counsel, but only that the obligation of each copartner was so far several, that in a suit against him judgment would pass for the whole demand, if the non-joinder of his copartners was not pleaded in abatement.

The plea itself, which, as the court decided, must be interposed in such cases, is inconsistent with the hypothesis of a several liability.

For the support of the second position, that a judgment against one copartner on a copartnership note does not constitute a bar to a suit upon the same note against another copartner, the plaintiff relies upon the case of Sheehy v. Mandeville & Jamesson, decided by this court, and reported in 6 Cranch, 254. In that case the plaintiff brought a suit upon a promissory note given by Jamesson for a copartnership debt of himself and Mandeville. A previous suit had been brought upon the same note against Jamesson alone, and...

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    ...77, 17 L. Ed. 560; Noonan v. Lee, 2 Black, 499, 17 L. Ed. 278, and Dunphy v. Kleinschmidt, 11 Wall. 610, 20 L. Ed. 223; Mason v. Eldred, 6 Wall. 231, 238, 18 L. Ed. 783, in effect overruling Sheeby v. Mandeville, 6 Cranch. 253, 3 L. Ed. 215; Gazzam v. Phillips, 20 How. 372, 377, 378, 15 L. ......
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