Prunty v. Mitchell

• Decision Date: 25 January 1882
• Citation: 76 Va. 169
• Court: Virginia Supreme Court
• Parties: PRUNTY v. MITCHELL & COBBS.

76 Va. 169

PRUNTY v. MITCHELL & COBBS.

Supreme Court of Appeals of Virginia.

January 25, 1882

Writ of error to judgment of circuit court of Richmond city in assumpsit, by Jesse Prunty v. W. T. Mitchell and W. W. Cobbs, partners trading in the name of Mitchell &amp Cobbs, and sequel to the case of Prunty v. Mitchell &amp Cobbs, reported in 30 Gratt. 247. It did not appear on the pleadings, but it was disclosed by the evidence that W A. J. Finney was a joint contractor with Mitchell & Cobbs in the contract whereon the action was brought, and, on motion of the defendants, the court instructed the jury to find for the defendants, if from the evidence they believed such to be the fact. The jury so found. Plaintiff excepted, as well on the ground of misdirection by the court as of its refusal to set aside the verdict and grant him a new trial.

W. W. Henry, for appellant.

The instruction was a misdirection of the jury, and the verdict was consequently erroneous. The defendants' only remedy for the non-joinder of Finney as a defendant was by plea in abatement, verified by affidavit; and by failing to put in such plea they waived the omission to join. Stephen on Pl., 4th Am. Ed., pp. 48-51; Ib. p. 430-1; Minor, vol. 4, part 1, p. 630, and part 2, p. 1054; 1 Rob. Pr., Old Ed. p. 163; Rice v. Shute, 5 Burr. 2611; Brown v. Belches, 1 Wash. 9; Shield v. Oney, 5 Munf. 550; Hawkins v. Ramsbottom, 6 Taunton 79; and Code of Va., ch. 167, §§ 21, 22, and 23.

No counsel for appellees.

OPINION

ANDERSON, J.

This is an action of assumpsit by the plaintiff in error, who was plaintiff below, against Mitchell & Cobbs on an account. Upon the trial on the issue of non-assumpsit, the court, upon motion of the defendant, instructed the jury that, if they believed from the evidence that the contract, for the breach of which the plaintiff sues, was made with a partnership firm, of which William A. J. Finney was a member, in addition to the two defendants, they should find for the defendants." To this instruction the plaintiff excepted, and it raises the question upon which this case turns.

When a person who ought to join as plaintiff is omitted, if the objection appears upon the pleadings the defendant may demur, move in arrest of judgment, or bring a writ of error. If it does not appear upon the pleadings, but is disclosed by the evidence, the plaintiff will be non-suited. But in case of defendants, if a party be omitted who is liable to be sued jointly with the defendants, the objection can be taken only by plea in abatement, verified by affidavit. 1 Chitty on Pleading, p. 53, 16th A. Ed.

Mr. Robinson says: " Pleas in abatement on account of all contracting parties not being sued, were first made necessary in the time of Lord Mansfield. It was then adjudged (in 1770) that the defendant must say in his plea who the partners are, and that if he does not plead the matter in abatement, the objection is waived." 5 Rob. Prac. p. 78. He cites Rice v. Shute, 5 Burr. 2613; 2 Wm. Bl. 695; Abbott v. Smith, 2 Wm. Bl. 947; Buller, J., in Reese v. Abbott, Cowp. 832, and Sheppard v. Baillie, 6 T. R. 329.

Prior to Rice v. Shute, it appears from the same writer that the defence of " " other joint contractors not sued," would avail upon non-assumpsit if the defendant showed, in an action on a sole contract, that he had promised jointly with another, his issue was regarded as proved. If that doctrine prevailed now, the instructions given by the court in this case could be maintained. The cases which held that doctrine, it seems, were decided after the action of assumpsit was substituted for the action of debt in cases of simple contract, and before the plea in abatement had been...