Morrissey v. Schindler

• Decision Date: 06 January 1886
• Citation: 26 N.W. 476,18 Neb. 672
• Parties: MORRISSEY AND OTHERS v. SCHINDLER.
• Court: Nebraska Supreme Court

18 Neb. 672

26 N.W. 476

MORRISSEY AND OTHERS

v.SCHINDLER.

Supreme Court of Nebraska.

Filed January 6, 1886.

Error from Cass county.

Crites & Ramsey, for plaintiffs.

M. A. Hartigan, for defendant.

COBB, C. J.

This action was brought in the district court of Cass county by Anton Schindler, plaintiff, against John C. Morrissey and Michael Morrissey, doing business under the name and style of Morrissey Bros., and the Burlington & Missouri River Railroad Company in Nebraska, defendants. The action is brought on a written contract for the erection of certain grain elevators by the plaintiff for the defendants; also claiming, in addition to the contract price for the erection of said elevators, an amount for extra work rendered necessary by reason of changes of the plans of said buildings after the execution of the said contract. The defendants Morrissey Bros. answered, making a general denial of the allegations of the petition, and especially denyingany contract or liability jointly with their co-defendant the Burlington & Missouri River Railroad Company in Nebraska. As a second answer and defense to the said petition, the defendants alleged the making and execution of a contract in writing between themselves in their firm name of Morrissey Bros. and the plaintiff, a copy of which contract is attached to the said answer, and is the same as that mentioned in the petition of the plaintiff. In their said answer the defendants aver “that neither at the time of the execution of the said contract, or subsequently, did the said defendant railroad company have any interest whatever in said contract, or in the subject-matter thereof; which said contract these answering defendants aver the said plaintiff is now seeking to enforce in this action as the joint contract of these answering defendants and said defendant railroad company with said plaintiff; wherefore these answering defendants aver that there is a misjoinder of causes of action herein, and also an improper joinder of defendants herein.” The said defendants, then, as a third defense, set out at length the making of the said contract by the plaintiff with them for the furnishing of the necessary labor and mechanical skill, and the erection and completion of nine grain elevators at different points along the line of the road of said defendant company, according to the terms and specifications of said written contract, for which work, when fully performed and finished according to the terms of said contract, the answering defendants were to pay the plaintiff the sum of $1,550; that after the performance of part of said work, and on or about the first day of April, 1883, the said plaintiff, without any just cause, abandoned the same, and discontinued the work on said grain elevator buildings, and has never since completed the same, though often requested; that during the part performance of said work the said defendants from time to time paid said plaintiff on account of said work and contract the sum of $1,700, at his request, etc. Defendants further aver that certain of said buildings were not built and finished in accordance with the said contract, and specify what ones and in what respects the same fail to comply with the terms of said contract to the loss and damage of the said defendants, over and above the services rendered by the plaintiff, in the sum of $1,738. There are also two more defenses pleaded by defendants, but they are substantially repetitions of the third defense. The answer concludes with a prayer for judgment against the plaintiff in the sum of $3,000 and costs. The plaintiff filed his reply, denying all allegations of new matter contained in said answer, and alleging “that the defendants received and accepted said elevators without claim of rebate, damages, or fault in particular; that they never made any claim of damages until the filing of the answer in this cause,” etc.

The cause was tried to a jury. The record contains the following journal entry: “Pending which testimony, the plaintiff dismissed said railroad company out of court, with costs. The court permits the same to be done, and ordered the trial to proceed against the remaining defendants by themselves; to which ruling and order they each duly object and except.” Upon the consent of parties in open court, the court delivered an oral charge to the jury, and no written instructions. The jury returned their verdict for the plaintiff in the sum of $350. Upon the denial of a new trial by the district court, the cause is brought to this court on error. Thirty-nine errors are assigned. They are not all insisted on by counsel in their briefs. The more important of those which are will be examined and disposed of in their order.

“(1) The district court erred in allowing said defendant in error to dismiss out of court the Burlington & Missouri River Railroad Company in Nebraska, a defendant named in his petition, after a plea in abatement for a misjoinder of parties defendant and causes of action had been pleaded as a defense to said petition, and an issue joined on said plea in abatement, and after a jury had been impaneled and sworn to try the issues joined in the pleading herein,” etc. It is quite obvious, upon an examination of the record, that the railroadcompany should not have been joined as a defendant; but under the strict rules of the common law it was unnecessary for the defendants to plead such misjoider in abatement. A plaintiff having sued several defendants in an action ex contractu, must, in general, have recovered against them all, or be nonsuited upon the trial. See Chit. Pl. 51. But all of this is changed by the Code; and it may be said that the necessity for a reform in the system of practice which resulted in the new system of pleading and practice in New York and other states, including our own, was more sharply illustrated in the provision of the common law above stated then in any other. Section 429 of the Code provides that “judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants. It may determine the ultimate rights of the parties on either side, as between themselves, and it may grant to the defendant any affirmative relief to which he may be entitled. In an action against several defendants, the court may, in its discretion, render judgment against one or more of them, leaving the action to proceed against the others, whenever a several judgment may be proper,” etc. It will therefore be readily seen that no defense on the part of “the answering defendants” could be predicated upon the misjoinder of the railroad company as a party defendant.

The above also applies to the second error assigned, which is that “the court erred in proceeding to a trial of the issues joined between said defendant in error and these plaintiffs in error, after said railroad company had been dismissed out of co...