Tieman v. Sachs

• Court: Oregon Supreme Court
• Writing for the Court: [52 Or. 564] SLATER, C. (after stating the facts as above).
• Citation: Tieman v. Sachs, 52 Or. 560, 98 P. 163 (Or. 1908)
• Decision Date: 24 November 1908
• Parties: TIEMAN et al. v. SACHS.

98 P. 163

52 Or. 560

TIEMAN et al. v. SACHS.

Supreme Court of Oregon

November 24, 1908

Appeal from Circuit Court, Baker County; William Smith, Judge.

Action by Max Tieman and another against M.H. Sachs. Judgment for plaintiffs, and defendant appeals. Reversed and remanded for a new trial.

This is an action to recover $92.37, as plaintiffs' proportionate share of the proceeds of a box of lost goods, collected by defendant from the carrier by whom they were lost. It is alleged, in substance: That the plaintiffs, the defendant and a fourth party, Frank Ellias, on April 17, 1907, entered into a co-partnership for the purpose of conducting a mercantile business at Baker City, Or., and elsewhere; that when the firm began business they invoiced and put into the business, among other things, 14 boxes of merchandise that had been shipped to them from Marine City, Mich., that thereafter one of said boxes was lost in transit; that defendant presented to the carrier a claim for the value thereof in the amount of $410.56, and in November, 1907 through an attorney, collected that amount at an expense of $41.06, as attorney's fee; that of the net amount defendant paid Frank Ellias one-fourth, $92.38, as his share and $92.37 to be paid by him to the plaintiffs, and defendant kept and retained the remainder, to wit, the sum of $184.74 that by the terms of the copartnership agreement the copartners agreed to share equally in all business losses and profits; and that by reason thereof, together with a settlement among them alleged to have been had in September, 1907, by which the partnership was dissolved and all business thereof was closed and an accounting had, except as to this claim for lost goods, the defendant became indebted to plaintiffs in the sum of $92.37. Concerning the settlement, it is alleged "that, at the time of the dissolution of the said firm, said defendant promised and agreed with the plaintiffs to account for and pay over to the plaintiffs their proportionate share of all moneys collected from said claim for said box of merchandise, and to pay to the said plaintiffs their full share of the assets of said firm." A demand upon defendant and a refusal by him to pay the amount claimed to be due are alleged. A demurrer to the complaint was interposed by defendant on the several grounds: (1) That there is a defect of parties plaintiff; (2) that two separate causes of action have been improperly united; and (3) that the facts are not sufficient to constitute a cause of action. The demurrer being overruled, defendant answered, denying the material averments of the complaint, and for an affirmative defense alleging: That, prior to the formation of the copartnership, Frank Ellias was the sole owner of the 14 boxes of merchandise, and while such owner sold to defendant, for a valuable consideration, an undivided one-half interest in and to the box of merchandise, which had been lost; that defendant thereafter presented to the Oregon Railroad & Navigation Company a claim for the value thereof, which was paid; that defendant disbursed the money received by paying 10 per cent. collection charges, and one-half of the balance to Frank Ellias; and that neither the copartnership nor plaintiffs, or either of them, ever had or now have any interest in said box of merchandise. By their reply plaintiffs admit that Frank Ellias was the sole owner of the 14 boxes of merchandise prior to the formation of the copartnership, but deny all other averments of the answer. The cause being at issue, a trial was had resulting in a verdict and judgment in favor of plaintiffs for the amount demanded, from which defendant has appealed, assigning as errors the overruling of his demurrer, rejection of competent and material evidence offered by him, and the giving of erroneous instructions.

O.B. Mount, for appellant.

Chas. P. Murphy, for respondents.

SLATER, C. (after stating the facts as above).

The first contention advanced by counsel for defendant in support of his demurrer is that the complaint shows a several right of action, if any, in each of the plaintiffs, and not a joint one. Hence there was a misjoinder of parties plaintiff, and for that reason the demurrer should have been sustained. The first assignment in support of the demurrer is that there is a defect of parties plaintiff, but that, as a ground of demurrer, means too few, and not too many. A demurrer alleging this particular objection can be interposed therefore, only in case of a nonjoinder of necessary plaintiffs or defendants, and never in case of misjoinder. Pomeroy's Code Remedies (4th Ed.) § 123; Paulson v. City of Portland, 16 Or. 450, 19 P. 450, 1 L.R.A. 673.

The second ground of demurrer is the one on which defendant chiefly relies. This is based on an alleged erroneous joinder of two distinct causes of action, each of which is vested severally in each plaintiff, and that the causes of action are distinct because they arise out of the separate nature of their interests. The goods are alleged to have been partnership property, and therefore the ownership thereof would be joint, and the proceeds would be held in the same right so long as the partnership relation continued. But the principle on which partners, after dissolution, can sue each other, in relation to what had been partnership...