T.B. Redmond & Co. v. Louisville & N.R. Co.

• Decision Date: 15 January 1908
• Citation: 154 Ala. 311,45 So. 649
• Parties: T. B. REDMOND & CO. v. LOUISVILLE & N. R. CO. ET AL.
• Court: Alabama Supreme Court

45 So. 649

154 Ala. 311

T. B. REDMOND & CO. v. LOUISVILLE & N. R. CO. ET AL.

Supreme Court of Alabama

January 15, 1908

Rehearing Denied Feb. 6, 1908.

Appeal from City Court of Anniston; Thomas W. Coleman, Jr., Judge.

Action by T. B. Redmond & Co. against the Louisville and Nashville Railroad Company and others. There was judgment for defendants, and plaintiffs appeal. Affirmed.

J. J Willet, for appellants.

Knox Acker & Blackmon, for appellees.

DOWDELL J.

The complaint is on the common counts. The plaintiffs seek to recover for work and labor done under a contract. The action is against the Louisville & Nashville Railroad Company, a corporation, and Dunn & Lellande Bros., a partnership, on a joint contract. The evidence was without dispute that there was no joint contract between the plaintiffs and defendants and that the contract under which the plaintiffs performed the services, and on account of which they seek a recovery in this suit, was one entered into by and between the plaintiffs and the defendants Dunn & Lellande Bros., and to which the defendant the Louisville & Nashville Railroad Company was in no wise a party. The plea of general issue, among other pleas, was interposed by all of the defendants. The jury returned a verdict in favor of the defendants, on which judgment was rendered. The case was clearly one of a variance between the allegation and the proof, which under well-settled rules of law is fatal to a right of recovery. The trial court gave the general charge in favor of the defendant the Louisville & Nashville Railroad Company, and might well have given it for all of the defendants.

It is insisted by counsel for appellants that the question of misjoinder of defendants was not raised on the pleadings, and that under the statute (section 44 of the Code of 1896) the plaintiff might recover against one or more of those jointly sued. Section 44 is as follows: "When suit is instituted against several defendants, whether sued as partners or otherwise, the plaintiff may recover against one or more." This statute has already been construed by this court, as section 2609 of a prior Code, in a case presenting the question we have before us (Gamble v. Kellum, 97 Ala. 677, 12 So. 82), where it was said: "The statute was not designed to give a right of recovery against some of the defendants, when the complaint, in a suit instituted against several, described a contract made by all jointly, on proof of a contract made by a part of them. It does not create a right of recovery inconsistent with the complaint but was intended to authorize a recovery against one or more of the defendants, when some of them are discharged from liability on the contract alleged in the complaint, upon personal defense not negativing the averment of a joint contract originally. In such a case the contract is proved as...