Rice v. Patterson

• Decision Date: 11 May 1908
• Docket Number: 12,771
• Citation: 92 Miss. 666,46 So. 255
• Court: Mississippi Supreme Court
• Parties: LOUIS P. RICE ET AL. v. JAMES W. PATTERSON ET AL

46 So. 255

92 Miss. 666

LOUIS P. RICE ET AL. v. JAMES W. PATTERSON ET AL

No. 12,771

Supreme Court of Mississippi

May 11, 1908

FROM the circuit court of Lawrence county, HON. ROBERT L. BULLARD Judge.

Rice and another, appellants, partners doing business under the firm name, Rice & Co., were plaintiffs in the court below and Patterson and others, appellees who had been partners doing business under the firm name, Patterson, Tyrone & Co. were defendants there. From a judgment in defendants' favor the plaintiffs appealed to the supreme court. The facts are stated in the opinion of the court.

Case reversed and remanded.

J. P Touchstone, for appellants.

Appellants' motion for judgment against defendants for mispleading should have been sustained. Code 1906, §§ 740, 741, 742.

Appellees are clearly liable individually for the debts contracted by the corporation before the charter was recorded, since the plaintiffs were without notice of the charter and dealt with them as a copartnership. Constitution 1890, sec. 189, is mandatory.

OPINION

CALHOON, J.

Rice & Co., filed on July 17, 1905--note the date--a valid declaration for goods sold, against Patterson, Tyrone & Co., averting that that firm was composed of James W. Patterson, M. C. Tyrone, and O. C. Luper. Process was issued against these parties defendant and duly served. The account sued on by the declaration was duly sworn to as just, true, and correct, and wholly unpaid. The affidavit to this account was made June 28, 1905, and the account shows that the goods were sold in three different sales, one of April 11th, another of May 2d, and another of May 28th, all in the year 1904. On October 2, 1905, the defendants filed a general issue plea. Contemporaneously the defendants filed another plea, which they styled a "plea in abatement," in which they say "the said several supposed promises and undertakings in said declaration mentioned, if any such were made, were and each of them was made by the corporation of Patterson, Tyrone & Co., which is still in existence, and at the time ef the commencement of this suit was, and still is, within the jurisdiction of this court, and not by these defendants, and this the defendants are ready to verify." On the same day, October 2, 1905, one of the defendants, M. C. Tyrone, filed a separate plea in which he says, as a reason why the action could not be maintained, that "said stock held by him in said corporation of Patterson, Tyrone & Co., was by him transferred in conformity with the by-laws of said corporation more than one year next preceding the commencement of this action, and that he is not liable for the debts of the corporation contracted during his ownership of the stock for the reasons heretofore set forth; and this he is ready to verify."

These two pleas, which seem to be treated as pleas in abatement are of course not pleas in abatement, but pleas in bar. If valid for any purpose they amount simply to the general issue. By the statute several pleas in abatement may be pleaded at the same time under Ann. Code 1892, § 682, and by section 683 of that code several pleas in bar may be pleaded together; but if pleas in bar and pleas in abatement are pleaded together, then, by Code 1906, § 684, the opposite party is entitled to judgment as for want of proper pleading. The plaintiffs moved to strike out these two last pleas, and for judgment against the defendants for mispleading, but the court overruled this motion. The plaintiffs then demurred to these pleas because they were insufficient in law, because they contained no proper statement of the incorporation of the organization, and do not...