West v. Ray
| Decision Date | 22 April 1946 |
| Docket Number | 38012. |
| Citation | 210 La. 25,26 So.2d 221 |
| Court | Louisiana Supreme Court |
| Parties | WEST v. RAY. |
Appeal from Fourth Judicial District Court, Parish of Ouachita; David I. Garrett, Judge.
James H. Dormon and Theus, Grisham, Davis & Leigh, all of Monroe, for plaintiff and appellant.
Shotwell & Brown, of Monroe, for defendant and appellee.
This is an appeal from a judgment sustaining an exception of no cause and no right of action and dissolving a writ of attachment issued upon a petition in which it is alleged that the plaintiff and defendant had obligated themselves in solido on a promissory note, which plaintiff paid in full, after calling in vain upon the defendant for his one-half share.
The petition also set forth that the funds obtained were used in a joint venture and the defendant filed exception of no cause and no right of action on the ground that the petition thus set up the existence of a partnership and, as expressed in his motion to dissolve the writ of attachment that '* * * Until the partnership is dissolved, an accounting made, and it is determined an amount is due plaintiff by defendant as a result of such accounting, plaintiff has no right of action * * *.'
The trial court, without hearing testimony, sustained the exception and dissolved the attachment. Plaintiff appealed.
The basis for defendant's contention that the petition disclosed a partnership is contained in paragraph 4 of the petition, which we quote:
'That the consideration for the aforesaid note was a loan by said bank to petitioner and defendant for the face amount of said note that the funds realized by defendant and petitioner from this said loan were used jointly by them in a joint venture they had undertaken; that the note was to be repaid by both in equal amounts, i.e., petitioner was to pay one-half thereof and defendant was to repay one-half thereof.' (Italics ours.)
The plaintiff, in argument and brief, concedes the general principle of law that an action by one partner against another can only be brought at the close of the partnership and then for a settlement of the account, but urges that there are many exceptions to the general rule and that the language of the petition is not such as to disclose affirmatively that, at the time of the institution of the suit, the partnership relation still existed, or that the cause of action herein did not fall within one of the recognized exceptions.
A reading of the paragraph in question does not make it certain that the obligation sued on is necessarily one which does not fall within one of the recognized exceptions to general rule prohibiting actions by one partner against another.
In 21 A.L.R 27, exceptions are listed with supporting citations. The rule is set forth in 21 A.L.R. 60, as follows: 'Broadly speaking, it might be said that one partner may maintain an action at law against another partner if the relief sought does not involve the taking of an accounting of complicated or numerous partnership transactions, but not if such accounts are involved.'
In the case of Rondeau v. Pedesclaux, 3 La. 510, 23 Am.Dec. 463, this Court held that one partner could maintain against another an action on a note '* * * given in pursuant of the article of partnership', even though the partnership was still in existence and there had been no settlement of accounts.
The petition discloses no facts which clearly either bring the case within, or exclude the case from the applicability of any of the several exceptions to the general rule prohibiting one partner from suing a copartner. In view of this, defendant argues that plaintiff's allegations must be construed strictly against the pleader; and that having alleged the existence of the joint venture or partnership, the petition discloses no right or cause of action since it fails to allege further facts bringing the case within the application of one of the exceptions to the general rule. Plaintiff contends that the existence of the partnership is a matter of affirmative defense; and that it cannot be sustained on the face of the allegations of the petition alone, unless the facts alleged by plaintiff clearly and unequivocally negative the applicability of all of the exceptions to the general rule relied on by defendant.
Technical objections and harsh rules of pleading which would dispose of litigants' cases without a hearing on the merits have never been favored under Louisiana law. The modern federal rule and general tendency in all States is to be reasonable and even liberal in construing or interpreting pleadings with a view of a prompt disposition of the case on its merits after full hearing by both parties, and where the petition fairly informs the defendant of the nature of plaintiff's claim, the modern court will not favor dismissal and the delays incident thereto because additional information has been included which may, granting that additional facts are ture, be expanded into a defense against the cause of action set forth by the petition. In the current case, the matters covered by the...
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