Roberts v. Toney
| Citation | 131 S.E. 552,100 W.Va. 688 |
| Decision Date | 02 February 1926 |
| Docket Number | 5423. |
| Parties | ROBERTS v. TONEY ET AL. |
| Court | Supreme Court of West Virginia |
Submitted January 26, 1926.
Syllabus by the Court.
A variance between the writ and declaration may be amended at any time before judgment, if substantial justice may be done thereby.
All contracts with partners are joint and several and every partner is liable to pay the whole, and in what proportion the others are contributors is a matter merely among themselves. Where partners are sued in their individual names, as in this case, and process is served against only one member thereof, the plaintiff may proceed to judgment as to the one so served.
Where a case has been tried, and the question of fact arising therein submitted to a jury, and it appears that there has been no error of law committed by the lower court, this court will not disturb the verdict, unless it clearly appears that the same is contrary to the evidence, or that there is no evidence to support it.
A case in which a partnership is established, and a partner held liable for an amount paid by an accommodation indorser on a note executed by the partnership, for the use and benefit of the firm.
Appeal from Circuit Court, Mercer County.
Assumpsit by R. R. Roberts against L. G. Toney and others, trading and doing business under the firm name of the Beamer Red Ash Coal Company. Motion of the defendant named to set aside a verdict for plaintiff and grant a new trial was denied, and judgment entered on the verdict, and he appeals. Affirmed.
Russell S. Ritz, of Bluefield, for appellant.
E. C Marshall, of Welch, for appellee.
This is an action in assumpsit, prosecuted by R. R. Roberts in the circuit court of Mercer county against M. F. Beamer, M. T Blessing, and L. G. Toney, trading and doing business under the firm name of Beamer Red Ash Coal Company. A judgment having been taken against the plaintiff, Roberts, on account of his indorsement for accommodation on a note of said partnership, and he having been made liable for a part of the payment thereon, he seeks recovery in this action for the amount paid by him on account of his indorsement for said partnership, claiming that the defendant L. G. Toney was a member of said partnership.
Plaintiff filed an original and amended declaration. In the original, a demurrer thereto was sustained, and the plaintiff permitted to file an amended declaration, both of which are in assumpsit, and to which amended declaration the defendant L G. Toney demurred, but said demurrer was overruled. Toney then filed a special plea in writing, denying that he was ever a partner in partnership with M. F. Beamer and M. T. Blessing, trading as Beamer Red Ash Coal Company, and also pleaded nonassumpsit, to which pleas the plaintiff replied generally. Both issues were tried jointly, and the jury found a verdict for the plaintiff thereon, and assessed his recovery at the sum of $600, which verdict the defendant L. G. Toney moved to set aside and grant him a new trial, but the court overruled said motion and rendered judgment thereon. From this action Toney appeals.
The defendant's assignments of error are: (1) The demurrer to the original and amended declarations herein should have been sustained, because the original declaration proceeds against the three named defendants as individuals, and the account filed therewith is against them as partners, and that the amended declaration is inconsistent with the original declaration, in this, that, without dismissing the original action, the plaintiff simply amends and then proceeds against this defendant as a partner. (2) Assuming the defendant L. G. Toney to have been a partner in the said Beamer Red Ash Coal Company, before proceeding against him as such, the other two partners should have, not only been made parties to this action, but process on them should have been served. (3) That the evidence in this case fails to establish as a matter of law that the defendant L. G. Toney was ever at any time a partner with the said M. F. Beamer and M. T. Blessing, trading as Beamer Red Ash Coal Company.
Beamer, Blessing, and Toney were all three named in the writ as partners, trading and doing business as Beamer Red Ash Coal Company; and, in the bill of particulars filed with the original declaration, they were likewise designated as such. The declaration inadvertently omitted to so describe them. The amended declaration was filed by leave of the court to cure this defect. Such amendment plainly falls within the scope of the statute. Code, c. 125, § 12. A variance between the writ and declaration may be amended at any time before judgment, if substantial justice may be done thereby. Courson v. Parker, 20 S.E. 583, 39 W.Va. 521. All the plaintiff did in this case was to make the original writ and declaration correspond; and as a matter of course the amended declaration superseded the original, and the two pleas of the defendant--denying partnership, and nonassumpsit--filed herein, responded to the amended pleading.
The second ground of error rests upon the mistaken belief that the individuals composing the partnership must not only be sued, but that all must have been served with process before trial. It is well established and an elementary rule in courts of chancery that all parties interested in the subject-matter in controversy must be parties to the suit and served with process therein or be notified thereof by publication. Brown v. Gorsuch & Sons, 40 S.E. 376 50 W.Va. 514. A different rule prevails in co...
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