The Continental Supply Company v. The Syndicate Trust Company, a Copartnership

• Decision Date: 31 December 1924
• Court: North Dakota Supreme Court

202 N.W. 404

52 N.D. 209

THE CONTINENTAL SUPPLY COMPANY, Respondent, v. THE SYNDICATE TRUST COMPANY, a Copartnership, Consisting of P. J. Burfening, S. A. Darling and W. R. Burgess and S.W. Narregang, as Copartners, Appellants

Supreme Court of North Dakota

December 31, 1924

Rehearing denied January 10, 1925.

Appeal from District Court of Cass County, Berry, J.

Modified.

Judgment entered against P. J. Burfening modified, and a judgment entered on the verdict against the partnership. Case remanded.

Conmy Young & Burnett and J. P. Conmy and P. J. Burfening, for appellant.

A motion for continuance is addressed to the sound discretion of the trial court, and his rulings thereon will not be disturbed on appeal, unless it appears there has been an abuse thereof. Storer v. Heitfeld, 17 Idaho 113, 105 P. 55.

Where an application for a continuance is made on the ground of the absence of a party to the action and it is shown by the affidavit of such party's physician that she is unable to attend the trial on account of serious sickness, and such affidavit of the physician is corroborated by the attorney for the party setting forth in such affidavit that the party is a material witness in her behalf, and that her presence is necessary for the purpose of assisting counsel to properly present her cause, and it appearing that such application for a continuance was made in good faith, and not for the purpose of vexation or delay, but that justice may be done, held to be an abuse of discretion to deny the application for a continuance, which will require a reversal of the cause. McMahan v. Norick (Okl.) 69 P. 1047.

The privilege of a party being present at the trial of his or her cause is a most important one. It should not be denied when a party is without fault. Welcome v. Boswell, 54 Ind 297; Schwartz v. Parsons, 22 Ind.App. 340, 53 N.E. 785; Deacon v. Rasch (Ind.) 81 N.E. 85.

Where an affidavit showed that defendants were husband and wife, that the wife was ill, and had left the state on the advice of a physician, who made affidavit to that effect, that her husband went with her, that they were the only witnesses for defendants, the court abused its discretion in not granting a continuance for the taking of depositions. Strom v. Toxlas, 138 P. 880.

The rule is to allow amendments to refuse is the exception. Nashau Sav. Bank v. Loryan, 1 N.D. 211, 46 N.W. 411.

The description of the individual members of a partnership firm does not make such individuals defendants the reference to them being merely descriptio personae. Winters v. Means, 69 N.W. 753.

A partnership is a distinct entity, and a judgment against it is not a judgment against the individuals who compose it. Lansing v. Beaver Co. 138 N.W. 833.

The rule of comity giving effect to contracts made beyond the limits if the state does not extend to an agreement in a note to pay attorney's fees if suit is instituted thereon, as such agreement is for a penalty and tends to the oppression of the debtor and to encourage litigation. Rogers v. Raines (Ky.) 38 S.W. 483.

Melvin A. Hildreth, for respondent.

The principle here is as to copartners, it is joint as to all the members and several as to each. A creditor may select any partner he chooses and collect his claim from that partner. See Jones v. Gould, 200 N.Y. 19; Crumbley v. Courtney (Iowa) 164 N.W. 945; People v. Knapp, 206 N.Y. 373, 383.

The universal holding of the courts is that when one or more of several joint debtors are not found, or are not served with process, the plaintiff may proceed to judgment against those served as if they were the only defendants; a judgment against the ones served only is generally held proper, and we cite the following cases. Oliver v. Hutto, 5 Ala. 211; Smith v. Robinson, 11 Ala. 270; Shapard v. Lightfoot, 56 Ala. 506; Ladiga Sawmill Co. v. Smith, 78 Ala. 108; Greer v. Liipfert Scales Co. 156 Ala. 572, 47 So. 307; Burnett v. Menifee, 4 Ark. 140; Ingraham v. Gildemeester, 2 Cal. 88; Feder v. Epstein, 69 Cal. 456, 10 P. 785.

JOHNSON, J. BRONSON, Ch. J., and BIRDZELL, CHRISTIANSON, and NUESSLE, JJ., concur.

OPINION

JOHNSON, J.

This is an appeal from a judgment against defendant P. J. Burfening in the sum of $ 2,614.59, on certain promissory notes executed by the defendant partnership, of which the appellant was a member. Burfening assigns error principally on the ground that the court denied leave to amend, and a motion for a continuance, made on the day of the trial and after the jury had been impanelled.

In order to understand fully the issues, it will be necessary to state the history of the litigation somewhat in detail. On October 10, 1923, summons and complaint were served personally on defendant P. J. Burfening and on November 8, he interposed an answer, which is, in effect, a general denial. The case then went on the December, 1923, calendar, in Cass County; depositions of witnesses for the plaintiff were taken at Houston, Texas, on December 28, 1923, and at St. Louis, Missouri, December 3, 1923. Defendant Burfening appeared when the deposition of Narregang was taken at Houston, but no questions were propounded to the witness by his counsel. On the 19th of January, 1924, the case not having been tried at the December term, but being on the January, 1924, calendar, counsel for Burfening served a proposed amended answer and counterclaim, with notice of motion for leave to file the same, to be heard on January 29, 1924. The proposed answer admits the partnership and the execution of the notes. It is alleged that the consideration for the notes failed completely in this, that the machinery purchased by the partnership was not as warranted and was valueless. The defendant then alleges a counterclaim, based upon breach of warranty and resulting damages. An affidavit was filed by counsel for the plaintiff in opposition to the application for leave to amend, in which it was alleged that the original answer was served within thirty days; that on November 10, 1923, the case was put on the regular calendar in Cass county and that notice to take depositions was served on November 26; that depositions were taken at Houston, Texas and St. Louis, Missouri, at large expense to plaintiff, and that at the taking of such depositions defendant Burfening appeared by counsel. It is then alleged that application for leave to amend is made for purposes of delay.

On the 2nd of February, Judge Cole denied the motion for leave to amend, and on March 7 plaintiff commenced attachment proceedings against Burfening and levied upon his property in Cass county. On the 15th of March, the case came for consideration before Judge Englert, one of the Judges of the district court, and on that date it transpired that an affidavit of prejudice had been filed by defendant against Judge Englert. This court assigned the Hon. H. L. Berry to try the case. On March 20, the case was called for trial in the forenoon and after the jury had been impanelled and during the noon hour a notice of motion for a continuance was served on the plaintiff, together with affidavit of one of the counsel for Burfening, Mr. J. P. Conmy, in support of the application. The application was promptly denied, whereupon the defendants withdrew on the ground that they had no evidence. The plaintiff proved its case, read the depositions of the witnesses, and the trial court instructed the jury to return a verdict for the plaintiff. The jury returned a general verdict in the amount asked in the complaint.

Ordinarily, an affirmance of the decision of the trial court, refusing to continue the case, would dispose of the other error assigned, based upon the order denying leave to amend. In this case, however, it appears probable, and it is so contended by counsel for the appellant, that the trial court, in denying the motion for a continuance, was influenced by the fact that the matters, which it was alleged in the affidavit that Burfening would testify to, were not admissible under the general denial. In view of this possibility we shall first determine whether the trial court abused its discretion in refusing to permit the defendant to file an amended answer on the 29th of January, laying a foundation for the evidence alleged in the affidavit in support of the motion for a continuance, which was subsequently made and likewise denied. Upon the entire record we are satisfied that we can not say, as a matter of law, that the trial court committed reversible error in refusing to allow the amendment.

It is strenuously urged that it was an abuse of discretion to deny the application for leave to amend the answer. We have examined the record with some care for facts bearing on this alleged error. There are some rather impressive circumstances that may have influenced the trial court to deny the motion. The answering defendant is a member of the bar of this state the trial court might well have presumed that he was thoroughly familiar with the elementary rules of pleading and of trial practice, and that he knew that in this jurisdiction absence and failure of consideration are matters of defense, must be pleaded and can not be proved under a general denial. Section 6913, Comp. Laws, 1913, being § 28 of the Neg. Instr. Act, makes absence or failure of consideration a matter of defense and this court has held that the burden of proof as to the defense of want or failure of consideration is upon the defendant to the end. Stubbins Hotel Co. v. Beissbarth, 43 N.D. 191, 174 N.W. 217; First State Bank v. Radke, 51 N.D. 246, 35 A.L.R. 1355, 199 N.W. 930; Sharp v. Sharp, 145 N.Y.S. 386; 2 Bates, New Pl., Pr., Parties & Forms, p. 1317. He was personally served, the law firm of which he was the head prepared the answer, and he did not leave the...