Virginia-carolina Chemical Co. v. Fisher

• Decision Date: 29 June 1909
• Citation: 58 Fla. 377,50 So. 504
• Parties: VIRGINIA-CAROLINA CHEMICAL CO. v. FISHER et al.
• Court: Florida Supreme Court

50 So. 504

58 Fla. 377

VIRGINIA-CAROLINA CHEMICAL CO. v. FISHER et al.

Florida Supreme Court, Division B.

June 29, 1909

Headnotes Filed November 12, 1909.

Error to Circuit Court, Bradford County; J. T. Wills, Judge.

Action by the Virginia-Carolina Chemical Company against F. A Fisher and others, copartners. Judgment for defendants, and plaintiff brings error. Reversed.

Syllabus by the Court

SYLLABUS

Where parties are sued upon notes alleged to have been executed by them as a partnership under such conditions as import a joint liability, pleas which simply deny that the notes were executed by them as a partnership, and which do not deny a joint liability, present no defense to the declaration.

Parties may be stockholders in a corporation, and yet may so deal with others as to be liable as partners.

The fact that a corporation of which the defendants are stockholders has been adjudged a bankrupt does not relieve those stockholders of debts contracted by them as partners.

In a plea of 'res judicata' there must be, first, identity in the thing sued for; second, identity of the cause of action; third, identity of person and parties to the action and, fourth, identity of the quality in the persons for or against whom the claim is made.

A married woman's notes, under the Constitution and laws of Florida, are void, and afford no basis for a common-law suit.

A married woman, under the Constitution and law of Florida cannot be a member of a partnership, so as to make herself liable personally for its debts, and a contract by her is incapable of ratification after the death of her husband.

COUNSEL

W. W. Hampton and J. E. Futch, for plaintiff in error.

J. E Hartridge and A. V. Long, for defendants in error. On the 3d of November, 1906, the plaintiff in error brought a suit at law in the circuit court of Bradford county against the defendants in error; the declaration containing three special counts on three several promissory notes, each of them dated Lawtey, Fla., April 24, 1905--the first for $1,397.10, and the other two for $1,397 each. The first became due November 1, 1905, the second November 15 1905, the third December 1, 1905. In other respects they were alike. The first of these notes is in the following words and figures:

'$1397.10.

Lawtey, Fla., Apr. 24, 1905.

'November 1, 1905, next, after date, we promise to pay to Virginia-Carolina Chemical Company, or order, without offset, thirteen hundred ninety-seven 10/100 dollars, for value received, payable at V. C. C. Co.'s office, Savannah, Ga., with interest from maturity at the rate of eight per cent. per annum, with all costs of collection, including ten per cent. attorney's fees, if collected by law or through an attorney.

'And each of us, whether maker, security, or indorser on this note, hereby waives and renounce for himself and family any and all homestead and exemption rights to which he of they may, in any event, be entitled under any provisions of the Constitution or laws, state or federal, as against this note or any renewal thereof.

'No. 7219.

F. A. Fisher Co.

'Due 11/1/1905.'

The declaration also contains a common count for the price of goods, etc., in the sum of $1,208.05, one for money lent, etc., in the same sum, and one for money found to be due on an account stated in the same sum.

The defendants filed the following pleas:

'(1) Now come the defendants, F. A. Fisher, M. E. Edwards, D. R. Edwards, and G. W. Brown, by A. V. Long and John E. Hartridge & Son, their attorneys, each for himself and collectively, and for plea to the declaration herein and each of the several counts thereof say that they never were at any time and are not now partners under the name of the F. A. Fisher Company, or any other name. [This plea was confined by the court to the special counts.]

'(3) And for a third plea to the declaration the defendants severally and collectively and each for himself say that they did not execute said promissory note, dated April 24, 1905, for $1,397.10, payable on November 1, 1905, with interest from maturity at 8 per cent. per annum, as a copartnership, as set forth in plaintiff's declaration.'

Similar pleas, 4 and 5, were filed to each of the other special counts.

A seventh plea was filed by M. E. Edwards: 'That before and at the time the said claims as set forth in the declaration accrued she was a married woman.'

The second and sixth pleas were stricken out on motion. The plaintiff demurred to the third, fourth, and fifth pleas on the grounds substantially:

(1) Neither of said pleas presents an issuable fact, which could be met by replication, or upon which issue could be joined.

(2) Neither of said pleas denies the execution of either of said promissory notes.

(3) Neither of said pleas denies the drawing or making of said notes, or either of them, as required by rule 64 of the rules of circuit court in common-law actions.

(4) Neither of said pleas presents a legal defense.

This demurrer was overruled. After this the defendant by leave of court filed six amended pleas. The first was limited by the court to the special counts, and so far as we can see is in effect a practical duplicate of the first plea. A demurrer to this plea was overruled.

The second amended plea was stricken on motion.

The third plea was 'never indebted' as to the fifth and sixth counts.

The fourth plea was as follows: 'And for a fourth plea to the first, second, and third counts of the declaration herein the defendants severally and collectively, and each for himself and herself, say that they did not execute the promissory note, set forth in the first, second, and third counts of the declaration, as a copartnership.'

This plea seems to us to be in effect substantially the same as the original third, fourth, and fifth pleas. A demurrer to the fourth plea was overruled.

The fifth plea was as follows: 'And for a fifth plea to the declaration, and each of the several counts thereof, the defendants severally and collectively, and each for himself and herself, say that they were stockholders in a corporation duly created under the name of the F. A. Fisher Company, under the laws of the state of Delaware, and that before the commencement of this action the said F. A. Fisher Company was duly adjudged a bankrupt in the United States District Court for the Southern District of Florida, a court having jurisdiction of the subject-matter, to wit, of bankruptcy proceedings, and that the said F. A. Fisher Company, so adjudged a bankrupt as a corporation, is the same company sued herein as a copartnership. And the said F. A. Fisher Company was on March 8, 1906, by order of James W. Locke, Judge of the District Court of the United States for the Southern District of Florida, duly discharged from all debts and claims provable by act of Congress against it, and the notes and debts, the subject-matter of this suit, were provable claims under said act of Congress.' A motion to strike this plea was denied.

The sixth amended plea was as follows: 'And for a sixth and further plea in this behalf, for M. E. Edwards, the said defendant M. E. Edwards says that, before and at the time the said notes in the first, second, and third counts were executed, and before and at the time the indebtedness secured as represented by the fifth and sixth counts of the plaintiffs' declaration, she was a married woman.' Issue was joined on this plea.

The plaintiff joined issue on the first amended plea of the first, second, and third counts of the declaration, and also upon the third and fifth amended pleas. The plaintiff also filed the following replication to the fourth amended plea:

'(3) For replication to the fourth amended plea, plaintiff says: That the consideration for the several notes sued upon herein, and declared upon in the first, second, and third counts of plaintiff's declaration, was fertilizers consigned and shipped by the plaintiff to the defendants as a copartnership, conducting a mercantile business under the firm name of F. A. Fisher Company, at Lawtey, Florida, and said goods were received by the F. A. Fisher Company as a copartnership, and pursuant to a written agreement theretofore made between the parties, reciting the partnership, consisting of F. A. Fisher, M. E. Edwards, D. R. Edwards, and G. W. Brown, as alleged in plaintiff's declaration, and all dealings by said defendants with the plaintiff in relation thereto were as a copartnership under the firm name and style of F. A. Fisher Company, and pursuant thereto the said notes were signed by a member of the said firm, and the manager of the said firm, to wit, F. A. Fisher, in the said firm name, to wit, F. A. Fisher Company, being the same F. A. Fisher who made the original contract, and had all dealings and transactions in relation thereto, with the plaintiff, and the plaintiff accepted the said notes, signed with and in the said firm name as a copartnership, believing in good faith when said notes were accepted that the same was a copartnership composed of the individuals as alleged in plaintiff's declaration.'

The plaintiff also filed the following replication to sixth amended plea:

'(5) For replication to defendants' sixth amended plea plaintiff says: That subsequent to the execution of the notes sued upon, to wit, on the --- day of December, A. D. 1905, D. R. Edwards, husband of the defendant M. E. Edwards, died, and the said M. E. Edwards thereby became a widow, and thereafter the said M. E. Edwards continued in the said business with and as a member of the firm of F. A. Fisher Company as a copartnership, as alleged in plaintiff's declaration, and the copartnership, of which the said M. E. Edwards was a member, after the death of the said D. R. Edwards...