Sanborn v. Hale

• Citation: 11 N.W. 302,12 Neb. 318
• Parties: SANBORN & FOLLETT, PLAINTIFFS IN ERROR, v. D. A. HALE, DEFENDANT IN ERROR
• Decision Date: 04 January 1882
• Court: Supreme Court of Nebraska

11 N.W. 302

12 Neb. 318

SANBORN & FOLLETT, PLAINTIFFS IN ERROR, v. D. A. HALE, DEFENDANT IN ERROR

Supreme Court of Nebraska

January 4, 1882

ERROR to the district court for Madison county. Heard below before BARNES, J. The opinion states the case.

REVERSED AND REMANDED.

George B. Fletcher, for plaintiff in error, cited sec. 129, Civil Code. Swan's Pleadings, 181. Ohio Life Insurance Co. v. Goodwin, 1 Handy, 31. Memphis v. Newton, 2 Handy 165.

Byron Millett, for defendant in error, cited B. & M. R. R. v Dick & Son, 7 Neb. 242. Bliss on Code Pleading, sections 232, 233, 306, 307.

OPINION

MAXWELL, J.

The plaintiffs in the firm name brought an action against the defendants, in the district court of Madison county, to recover the sum of $ 250.00, interest and costs, upon a promissory note. Afterwards they filed an amended petition, to which the defendant demurred, upon the ground that the facts stated therein were not sufficient to constitute a cause of action. The demurrer was sustained and the action dismissed. The following is a copy of the petition:

"Amended petition in the district court of Madison county, Nebraska.

Luther C. Sanborn and Judson L. Follett, doing business at Sioux City, state of Iowa under the firm name and style of Sanborn & Follett, plaintiffs, against D. A. Hale, defendant.

The plaintiffs say: 1st. This, their action, is founded upon a promissory note, of which the following is a copy:

$ 250.00. Madison county, Neb. June 27th, 1874. For value received, we jointly and severally promise to pay to the Madison County Joint Stock Company, or order, the sum of two hundred and fifty dollars, as follows: $ 75.00 on or before the 15th day of October, 1874, and $ 25.00 every ninety days thereafter, until the full amount is paid.

D. A. HALE.

On the back of the note is the following indorsement thereon, to-wit:

Pay Sanborn & Follett, or order, without recourse.

J. B. GIBBS, President.

J. D. HOOVER, Secretary,

Madison County Joint Stock Co.

2d. There are no credits thereon.

3d. The defendant, D. A. Hale, is liable as maker on said note.

4th. There is due from the defendant to the plaintiff on said note the sum of two hundred and fifty dollars, which they claim, with ten per cent. interest on $ 75.00 thereof, from October 15th, A. D., 1874; with ten per cent. interest on $ 25.00 thereof, from January 15th, A. D., 1875; with ten per cent. interest on $ 25.00 thereof, from the 15th day of April, A. D., 1875; with ten per cent. interest on $ 25.00 thereof, from the 15th day of July, A. D., 1875; with ten per cent. interest on $ 25.00 thereof, from the 15th day of October, A. D., 1875; with ten per cent. interest on $ 25.00 thereof, from January 15th, A. D., 1876; with ten per cent. interest on $ 25.00 thereof, from April 15th, A. D., 1876; and with ten per cent. interest on $ 25.00 thereof, from July 15th, A. D., 1876, and for which they ask judgment.

GEO. B. FLETCHER,

Attorney for Plaintiffs."

The defendant contends that the plaintiffs being partners, and suing as such, had no standing in court, as their petition does not show that the partnership was formed for the purpose of carrying on business in this state. Even if the action was brought in the firm name the objection could not be reached by a general demurrer. Objection to the legal capacity of ...