Pope Mfg. Co. v. Welch

• Decision Date: 18 July 1899
• Citation: 33 S.E. 787,55 S.C. 528
• Parties: POPE MFG. CO. v. WELCH et al.
• Court: South Carolina Supreme Court

33 S.E. 787

55 S.C. 528

POPE MFG. CO. v. WELCH et al.

Supreme Court of South Carolina

July 18, 1899

Appeal from common pleas circuit court of Charleston county; W. C Benet, Judge.

Action by the Pope Manufacturing Company against William H. Welch and Edward B. Welch, co-partners under the name of the Charleston Cycle Company. From an order striking out a counterclaim by the defendant Edward B. Welch, the defendants appeal. Affirmed.

Bryan & Bryan, for appellants.

Smythe Lee & Frost, for respondent.

McIVER C.J.

The plaintiff brings this action, as a corporation, against the defendants, as co-partners in trade under the name and style of the Charleston Cycle Company, to recover the amount due on three accounts for goods sold and delivered and for work and labor done at the request of defendants, each of which accounts is set out in the complaint as a separate cause of action. The defendants, in their joint answer, set up as their defense a general denial of all the allegations in the complaint. The defendant E. B. Welch also filed a separate answer, in which he alleges that he alone was at the times mentioned and still is, doing business under the name and style of the Charleston Cycle Company, and sets up two counterclaims against the plaintiff, upon which he demands judgment against the plaintiff. To the separate answer of the said E. B. Welch the plaintiff replied, admitting the allegation that the plaintiff was at the time mentioned, and still is, a corporation duly created under the laws of the state of Maine, and denying all the other allegations contained in said answer. Upon this state of the pleadings the plaintiff gave notice of a motion to strike out the counterclaims, upon the ground that they do not state facts sufficient to constitute either a counterclaim or a defense to this action, inasmuch as the same is brought by the plaintiff against the defendants, as co-partners, on claims alleged to be due by said co-partnership, while the said counterclaims are interposed by the defendant E. B. Welch alone, on claims alleged to be due by the plaintiff to him individually. This motion was heard by his honor, Judge Benet, who, after hearing argument of counsel, granted the motion upon the ground that the action being against a partnership, upon an alleged partnership debt, one of the defendant partners cannot set up as a counterclaim a debt alleged to be due him individually by the plaintiff. From this order the defendants appeal, upon the several grounds set out in the record, which need not be stated specifically here, as the substantial and real question presented by the appeal is whether, to an action of law brought against defendants, as co-partners, upon a demand alleged to be due by the partnership, one of the defendants can set up as a counterclaim a debt alleged to be due him individually by the plaintiff.

Under the common-law system of pleading which prevailed in the state prior to the adoption of the Code of Civil Procedure we do not see how there could be a doubt that the question presented by this appeal would have to be answered in the negative. The principles laid down in the following cases necessarily lead to such a conclusion: Powrie v. Fletcher, 2 Bay, 146; Philson v. Bampfield's Adm'r, 1 Brev. 202; Lovel v. Whitridge, 1 McCord, 7; Collins v. Le Masters, 1 Bailey, 348; Watson v. Owens, 1 Rich. Law, 111; Bank v. Hodges, 11 Rich. Law, 480. And in Kenedy v. Cunningham, Cheves, 50, the point was expressly decided. See, also, 22 Am. & Eng. Enc. Law, 292, and the cases there cited. The case of Rice v. Shute, 5 Burrows, 2611, has been cited by counsel for appellants, apparently for the purpose of quoting therefrom a passing remark of Lord Mansfield, that: "All contracts with partners are joint and several. Every partner is liable to pay the whole." But the point decided in that case sustains, rather than conflicts with, our view. There the action was against one partner only upon a partnership debt. There was no plea in abatement by reason of the nonjoinder of the other partner, and at the trial the defendant was permitted to give evidence that there was another partner, who was not joined in the action, and upon this evidence the plaintiff was nonsuited. Upon a rule to show cause why the nonsuit should not be set aside and a new trial granted, heard before the king's bench, the rule was made absolute, upon the ground that the defendant, by failing to plead in abatement the nonjoinder of his co-partner, had waived the objection, and the evidence that there was another partner who was not joined should not have been received. The case therefore does not decide what the side note seems to imply,--that an action for a partnership debt may be brought against one partner only; but, on the contrary, it simply decides that in such an action the only remedy which the defendant has, in this respect, is to plead in abatement the nonjoinder of his co-partner; and, if he neglects to resort to that remedy, he waives the objection, and he cannot, in any other form, avail himself of the objection of such nonjoinder. This is for the very good reason that under the well-settled rule the plea in abatement must give the plaintiff a better writ,--must name the absent parties whose presence is necessary; and therefore if there is no plea in abatement, as Lord Mansfield says, the plaintiff "may be nonsuited twenty times before he learns them all." Indeed, in that very case Lord Mansfield admits that the rule, as laid down in the books, is that "in actions upon contract every partner must be made a defendant." And Mr. Justice Ashton, in his concurring opinion, cites a case in which it was held "that upon a joint bond (to which an action against a partnership is, in several cases, assimilated) the action cannot be brought against one of the obligors only." It seems to us clear that the case of Rice v. Shute, supra, not only does not conflict with, but, on the contrary, sustains, the rule as we have stated it, which prevailed under the common-law system of pleading.

It only remains, therefore, to inquire whether this rule has been abrogated or modified by the Code. The provisions of the Code, in sections 157 and 296, are relied upon to show that the common-law rule has been changed, or at least modified. Section 157 reads as follows: "Where the action is against two or more defendants, and the summons is served on one or more of them, but not on all of them, the plaintiff may proceed as follows: (1) If the action be against defendants jointly indebted upon contract, he may proceed against the defendants served, unless the court otherwise direct; and, if he recover judgment, it may be enforced against the joint property of all and the separate property of the defendants served, and, if they are subject to arrest, against the persons of the defendants served. Or (2) if the action be against defendants severally liable, he may proceed against the defendants served, in the same manner as if they were the only defendants. (3) If all the defendants have been served, judgment may be taken against any or either of them severally, where the plaintiff would be entitled to judgment against such defendant or defendants, if the action had been against them, or any of them, alone. (4) If the name of one or more partners shall, for any cause, have been omitted in any action in which judgment shall have passed against the defendants named in the summons, and such omissions shall not have been pleaded in such action, the plaintiff, in case the judgment therein shall remain unsatisfied, may, by action, recover of such partner separately, upon proving his joint liability, notwithstanding he may not have been named in the original action; but the plaintiff shall have satisfaction of only one judgment rendered for the same cause of action."

In the first place, we remark that the various provisions of this section do not apply to the case under consideration. The object of the section, as declared in the first paragraph, is to provide the mode by which a plaintiff may proceed in an action where the summons has not been served upon all of the defendants; and it then proceeds to direct how the plaintiff, in such cases, may proceed in the various contingencies presented in the several subdivisions of the section. It is apparent, therefore, that, by the express terms of the section, its provisions do not apply to a case like the present, where both defendants have been served, and both have answered the complaint. This has been directly decided in Dulany v. Elford, 22 S.C. 309, where it is said: "Section 157 of the Code, by its express terms applies only to those cases in which only one of two partners has been served with the summons." And the same doctrine is recognized in Whitfield v. Hovey, 30 S.C. 117, 8 S.E. 840. Besides this, we see nothing in the section which indicates any intention on the part of the legislature to make any change in the previously well established rule, except in the cases specially provided for in the various subdivisions of the section, none of which are applicable to the present case. Indeed, it may be doubted, from what is said of the act of 1792 and the act of 1823 in the case of Simonds v. Speed, 6 Rich. Law, 390, whether any additional changes to that effected by those two acts were made in the cases specified in the contingencies mentioned in the various subdivisions of section 157 of the Code, as the former contained provisions very similar to those found in subdivision 4, and the latter seems to have extended those provisions to actions on all joint contracts as well as to co-partnership contracts. But, be this as it may, we find nothing in section 157 of the Code which changes the general rule, or...