70 Pa. 253 | Pa. | 1872
The opinion of the court was delivered, July 3d 1872, by
The question presented by the first assignment of error is, whether the judgment obtained in Wisconsin against the other members of the firm extinguished the partnership-note, and discharged the plaintiff, who was not served with the summons, from his legal obligation to pay it, and if so, whether it constitutes a defence in this action. The court below charged the jury that, “at the common law, if a creditor took judgment and liquidated it against one joint debtor he lost all right to bring suit for the same claim against the other joint debtor or debtors; and as we have no evidence that such proceedings are regulated by statute in Wisconsin, we must presume that the common law prevails there, and we are therefore of the opinion that the judgment taken by Barnes, Lyman & Co. for their claim against the members of the firm other than Bennett, released him from all legal obligation to pay the debt. It was no longer a legal claim against him.”
It is undoubtedly true that by the common law a judgment against one or more of several partners on a partnership-note merges the original cause of action, and is a bar to another suit against the remaining partners who were not served with the writ of summons: Smith v. Black, 9 S. & R. 142; Downey v. Bank. 13 Id. 288. But in the absence of proof, must we presume that the common law prevails in Wisconsin unmodified by statute ? And if so, does it follow that the judgment recovered against the other members of the firm in that state was a bar to the action brought against the plaintiff in the court below to recover the amount of the note ? It is clear, that by the law of Pennsylvania it was not a bar to the action: Vanemen v. Herdman, 3 Watts 202; why, then, should we presume that it was by the law of Wisconsin ? It is well settled that in the absence of proof,
But if it had been shown that by the law of Wisconsin the plaintiff w'as discharged from all liability on the note by the judgment against the other members of the firm, could the defendant set up his discharge as a defence to this action ? The defendant did not plead the judgment and give the record of it in evidence. All the proof that we have that any such recovery was had, is found in the record of the judgment against the plaintiff for the amount of the note. The plaintiffs in that case filed a statement of their claim, and after setting out a copy of the note, they say: After the said note became due, the plaintiffs, January 8th 1858, recovered judgment against the defendants, George W. Haverstick, Chas. H. Orton and Henry Cadwell, in the United States District Court for the District of Wisconsin, for $1407.79. Elon A. Bennett, the defendant, was not served with process of summons, and on that account judgment was not obtained against him jointly with the other partners, the makers of the note. Upon this statement judgment was entered against Bennett on the 30th day of March Í861, for want of an affidavit of defence. It is admitted that if tbe defendant’s testator had had notice of the action, the judgment would have been conclusive against the executor in this action. But the judgment is primfi facie evidence of the plaintiff’s right to maintain the action, and if it cannot be collaterally impeached, it is conclusive on the defendant. What right then had he to impeach it ? He may avoid its effect by showing that his testator had a good defence to the action if he had received notice of its pendency, and been required to defend it. But he had no defence other than the recovery of the judgment against the other members of the firm in Wisconsin. But this defence is set out on 'the record in the statement of the plaintiff’s claim, and was passed upon by the court in rendering judgment against the defendant. If the plaintiffs, by their own showing, were not entitled to judgment, then the court had no right to enter judgment against the defendant for want of an affidavit of defence : Woodwell v. Bluff Mining Co., 1 Casey 365. The court, therefore, in giving judgment against the defendant, necessarily decided that the recovery of the judgment in Wisconsin against the other members of the firm was not a release and discharge of the defendant from his obligation to pay the debt. Whether the court was in error in so deciding, cannot, as it seems to me, be inquired into collaterally in this action. The court ba'd jurisdiction of the
There is nothing in the second assignment, and it only remains to consider the question presented by the third specification, whether the bond given by Cadwell, upon which judgment was entered in the court below, was a satisfaction of the claim against all the other members of the firm because it was a higher security than the note? Undoubtedly the acceptance of a bond or specialty from one partner is an extinguishment or satisfaction of the partnership indebtedness on simple contract. But there is no evidence that the bond of Cadwell was taken for the partnership indebtedness on the note. The judgment obtained in Wisconsin against Cadwell and the other members of the firm had already extinguished the note as against them. The bond, if taken for the partnership indebtedness, must therefore have been taken in payment or as collateral security for the judgment. There is no evidence for what the bond was given, except that it may be inferred from the assignment of the judgment entered thereon, that it was given as collateral security for the judgment obtained in Wisconsin. It was not a merger or extinguishment of the judgment, nor could it operate as a satisfaction of it unless it was taken in payment. But whether it was taken in satisfaction or as collateral security of the judgment if it was paid to the plaintiffs, or their assignee, Lyons, it was a good defence to the scire facias on the judgment against Bennett; and as it had been satisfied by Lyons before the issuing of the scire facias, it was primá facie a good defence to that action. It is clear that if Cadwell had paid Barnes, Lyman & Co., or their assignee, the amount of their judgment, it was a satisfaction of their claim against the partnership, and Bennett, if advised of the fact, he might have availed himself of the defence in the sci. fa. on the judgment. As the case goes back for a new trial, it may be proper to say that, in this aspect of it, though no error is assigned to its rejection, the court erred in not admitting in evidence the notice given by Bennett to the defendant of the pendency of the sci. fa. It is true that neither Bennett nor Cadwell could have set up a pretermitted defence, but they could have set up the payment of the judgment given hy Cadwell, for that was a satisfaction of the plaintiff’s whole claim against the partnership. As the satisfaction of the judgment against Cadwell was primá facie evidence of its payment, it was a good defence to the scire facias, and, therefore, if Bennett gave notice of its pendency, the executor was bound to appear to the action and set up the payment of the judgment by
It follows, from what we have said-, that the court below was in error in instructing the jury that the plaintiff was not entitled to recover the amount of the judgment obtained against him by Barnes, Lyman k Co., because his liability to them was extinguished by the judgment obtained against the other members of the firm in Wisconsin, and because the partnership note was extinguished by the bond given by Cadwell, upon which judgment was entered in the Common Pleas of Erie county.
Judgment reversed and a venire facias de novo awarded.