Addicken v. Schrubbe

| Iowa | Dec 16, 1876

Seevers, Oh. J.

i pleading: cages'o°/action: parties. The original petition seeks to recover of both defendants, under the written contract signed in their Pai'tnfership name, and the amendment thereto-seeks to recover against the same parties on an oraj agreement of the partnership to repay certain borrowed money. These two pleadings should be regarded as one petition containing two counts. Such seems to have been the intent, of the pleader.

While the first count or petition stood alone the court excluded the written agreement as evidence, but admitted it after the amendment was filed. We are at a loss to conceive in what way or manner the legal right to recover on the writing was changed by the amendment. It, as well as the original petition, sought a recovery against both defendants as a firm, and neither sought to charge either defendant separately, by reason of any agreement or thing done by him alone. No separate liability whatever is charged in either count of the petition.

The plaintiff claims to recover only on one of the .counts, that is, either on the original petition or the amendment thereto. The court, in the instructions to the jury, recognized the right of the plaintiff to recover of one defendant on the written agreement or first count, and against the other defendant on the oral contract or second count in the petition. In this there was error. Both defendants are clearly liable on the second count, and it is so framed that such recovery can be had, while the first count seeks a recovery against both defendants and the facts proved only show the liability of one.

If the pleadings had been drafted in accord with the facts proved the first count would have shown a separate cause of action against one defendant, and the second count a cause of action against both defendants. This would have presented for trial a joinder of causes of action not allowed even under the Code. In this action, at least, the plaintiff cannot have a recovery against one defendant on the written contract and against the other on the oral agreement. He must elect on which; he cannot have both.

Reversed.