Rowe v. Chandler

• Decision Date: 01 December 1850
• Citation: 1 Cal. 167
• Court: California Supreme Court
• Parties: ROWE v. CHANDLER & DENNISON.

1 Cal. 167

ROWE v. CHANDLER & DENNISON.

Supreme Court of the State of California

December Term, 1850

December 1, 1850

APPEAL from the Superior Court of the City of San Francisco. The point on which the judgment of the Court is based, is suffi- ciently stated in the opinion of the Court. The cause was twice argued. On the first argument, the Court, taking for its guide the case of Merrifield v. Cooley (4 How. N. Y. Pr. Rep. 272), reversed the judgment of the Superior Court. The opinion was delivered by BENNETT, J., as follows:

"The action was brought against the defendants, Chandler & Dennison, upon an alleged joint indebtedness. Process was served on both of them; but the plaintiff, at the trial, failed to prove a joint liability against both defendants. He did, however, make out a cause of action against one of the defendants, and a verdict was taken, and judgment rendered, in favor of one defendant and against the other. This was erroneous. (Merrifield v. Cooley, 4 How. Pr. Rep. 272.)

"At the common law, in an action against two or more defendants upon an alleged joint undertaking or contract, the judgment must be against all the defendants, or in favor of all. In such case, if the plaintiff fail, at the trial, to establish a joint contract or undertaking, all the defendants are entitled to verdict and judgment, though it be proved that one of them would have been liable had the suit been brought against him alone. Judgment reversed."

The plaintiff moved for a rehearing, which was granted; and the cause was again argued by

Edward Norton, for Plaintiff, and

John Chetwood, for Defendant.

By the Court, BENNETT, J. The complaint alleges an indebtedness by the defendants as partners. The answer denies the indebtedness. At the trial, the plaintiff made out a cause of action against the defendant, Dennison, but failed to establish a joint indebtedness of both defendants. The jury brought in a verdict in favor of Chandler, and against Dennison, and judgment was rendered in accordance with such verdict. The question is thus presented, whether if, in an action on contract against two or more defendants, the plaintiff fails to make out the joint liability of all, he may take judgment against one or more, who are proved to be liable.

The point is to be determined under the provisions of the Practice Act of this State, which, so far as this question is affected, is, in substance, and for the most part, literally a transcript of the Code of Procedure of the State of New York. Under that code it has been held by one of the Justices of the Supremo Court of New York, in the case of Merrifield v. Cooley (4 How. Pr. Rep, 272), in an action, like the present one, against several defendants to recover damages for the breach of a contract, that the plaintiff must recover against all the defendants, or none. Our former decision in this cause was in accordance with the doctrine of Merrifield v. Cooley; but, on a rehearing, and after elaborate arguments by counsel on both sides, we have come to the conclusion that the decision in Merrifield v. Cooley, and our former decision, are both wrong.

It is not disputed that, at common law, as a general rule, where a party brought his action upon a contract against two or more defendants, he was obliged to make out a cause of action against all the defendants, or he could recover against none. (1 Chitty's Pl. 34; Mannahan v. Gibbons, 19 J. R. 109.) This general rule was, however, subject to several exceptions. Thus, if one of the defendants, after the making of the contract, had received his discharge in bankruptcy, although the practice in England required all the joint contractors to be sued (Bevil v. Wood, 2 Maule & Selw. 23), yet judgment might be rendered in favor of the person so discharged, and against the others. (1 Chitty's Pl. 35; Camp v. Gifford, 7 Hill, 169.) So also, contrary to the English practice (1 Chitty's Pl. 51), it has been held in New York and Massachusetts, that where one of several defendants establishes his infancy at the time of making the contract, judgment may be rendered in his favor, and against the other defendants. (Hartness v. Thompson, 5 J. R. 160; Woodworth v. Marshall, 1 Pick. Rep. 500.) In the cases last cited, the Court seems to have considered the question rather as a matter of practice, to be decided upon convenience and policy, than as a matter of principle.

It was settled law, under the old system of practice, that where one of several joint contractors was sued, the plaintiff might proceed and take judgment against him, unless he interposed a plea of non-joinder in abatement (1 Chitty's Pl. 52, 53); whereas, in case too many persons were made defendants, it was a fatal defect, according to circumstances, upon demurrer, motion for nonsuit at the trial, motion in arrest of judgment, or writ of error. (Id. 50.) Under that system, it was, therefore, necessary to plead nonjoinder in abatement, or the defendant was deemed to have waived all objection, but it was not necessary to plead misjoinder in abatement, and a defendant might take advantage of this defect at any stage of the proceedings. This distinction proceeded upon the ground, that the law held the plaintiff under no obligation to know that he had not joined a sufficient number of persons as defendants in the suit, and that the person sued must come in and inform him of the defect by plea in abatement, and give him a better writ; but that he was bound to know that he had joined too many persons, and that neither defendant was obliged to give him any information on the subject until after it was too late to correct the mistake. Thus, A is doing business under the name and firm of A & Co., and B is a member of the firm. There is an indebtedness of the firm, upon which suit is brought against A alone. Now, the old system says, that the plaintiff is not bound to know that B was a joint contractor, and that A, if he wishes to have B joined with him in the suit as a co-defendant, must, at an early stage of the proceedings inform the plaintiff of the error into which he has run, in order that he may be enabled to correct it. At the same time, if B were, in truth, not a partner with, but a clerk or servant of A, then the plaintiff must know that fact; and if a suit were brought against them jointly on an indebtedness of A & Co., neither A nor B would be under any obligations to raise the objection and have the mistake corrected in the outset, but might permit the suit to proceed to trial, and then avail himself of the mis-joinder. Now it would seem that, if the plaintiff is bound to know the number and names of the persons who had contracted with him, so as not to excuse him for joining too many, he ought equally to know the number and names of the persons who had contracted with him, so as not to excuse him for joining too few—that if, in the one case, he be required to know who ought to be made defendants, he should be equally bound to know the same thing in the other case. And it strikes us as reasonable, that if a defendant be required to plead a non-joinder in abatement, or be deemed to have waived it, he should, at the same time, be required to plead a mis-joinder in abatement, or be deemed to have waived it, and to subject himself to a judgment, in case the indebtedness in the complaint be proved against him alone.

There is nothing in the form or substance of the old plea of the general issue, which can distinguish the two cases. If it be said that, by the plea of the general issue in an action against two or more, they deny the joint indebtedness where the debt was contracted by one of them, so it may, with equal propriety, be urged in an action against one, where in truth the contract was made by two or more, that the plea of the general issue denies the separate indebtedness. Indeed, the distinction adverted to seems to be one of those arbitrary and unmeaning rules, which disfigure the body of the common law, and which, in many cases, disturb, and, in some, entirely divert, the course of justice.

In Minor et al. v. The Mechanics' Bank of Alexandria (1 Peters, 46), the strictness of the common law practice was relaxed still further than it had been in Hartness v. Thompson, and Woodworth v. Marshall. It was held in that case, that, though on a joint and several bond the plaintiff might sue one or all of the obligors, and, in strictness of law, could not sue an intermediate number—that he must either sue all, or not more than one—yet, if there was error in this respect, it could be taken advantage of only by plea in abatement, and was waived by pleading to the merits. Mr. Justice Story says, in that case, that the authorities proceeded upon the ground, that the question was matter of practice, to be decided upon considerations of policy and convenience, rather than matter of absolute principle, and that the Court was left at full liberty to entertain such a decision as its own notions of general convenience, and legal analogies would lead it to adopt; and he adds that, "in the administration of justice, matter of form, not absolutely subjected to authority, may well yield to the substantial purposes of justice."

It is matter of every day practice in Courts of Equity to add or strike out parties, to render a decree against some defendants, and in favor of others; and, in actions at law sounding in tort, it is always permitted to take judgment against such of the defendants as are proved to be guilty of the wrong, while judgment of acquittal may be rendered in behalf of others. In some cases, such as actions against common carriers, where the cause of action in reality arises out of contract express or implied, the plaintiff has his election to found his action on the contract, in which case the strict rules of nonjoinder and misjoinder are applied; or to bring his action on the case, founded on the breach of duty imposed on the defendants by law, and sounding in tort, in which case it matters not...