190 P. 291 | Mont. | 1920
delivered the opinion of the court.
The complaint herein alleges that plaintiff sold to defendant, at an agreed price per pound, approximately 100 head of cattle, to be delivered in lots during the months of August and September, 1916; that the first delivery was made August 1, received and paid for by defendant, but that thereafter, by reason of a decline in the market, he refused to receive and
In his brief, counsel for defendant states: “The theory of the defendant, as shown by his answer, was that whatever dealings he had with regard to the purchase of the cattle was had by him with the plaintiff and one Runkle, as partners. This theory is borne out by the evidence of the plaintiff.” The answer, however, merely denies specifically each of the allegations of the complaint, and goes no further. It contains no averment suggesting that defendant had any dealings with either Church or Church and Runkle; nor does it contain any intimation that plaintiff, in his individual capacity, was not the proper party plaintiff.
On the trial defendant was permitted, without objection, to show that while Church purchased the cattle and was sole owner of them, he had an agreement with Runkle that the latter was to assist in disposing of them, and was to receive one-half of the profit, if any, and to share any loss sustained. Both parties having rested, defendant moved for a directed verdict on the ground of nonjoinder of parties, insufficiency of 'the evidence as to the market value at Billings, and that the complaint did not state a cause of action, which latter objection also referred to suit by Church in his individual capacity. The motion was overruled, and the court refused all offered instructions based on the assumption that a partnership existed. The jury returned a verdict for the amount sued for. Defendant moved for a new trial, which motion was denied. The appeal is from the judgment and from the order denying his motion for a new trial.
1. The first assignment of error is predicated on the court’s
2. The remaining assignments are directed to the action of the court in its refusal to direct a verdict, refusal to give certain offered instructions, and in overruling the motion for a new trial, and are all based on the contention that the evidence disclosed a partnership. They will therefore be considered together.
The facts on which defendant relies were known to him at
The provisions of our Codes and the above decision are in accord with the general rules on the subject, noted in Cye. as follows:' “A defense that the plaintiff is not the real party in interest and hence has no right to sue must be specially pleaded in bar. * * * The rule usually adopted under the Code provision, that the answer may set forth as many grounds of defense as the defendant may have, is that nonjoinder of a party may be pleaded together with matter in bar. The objection that there is a defect of parties must be presented in the answer in a clear and distinct manner. In analogy to a plea in abatement which must be so specific as to omitted parties as to give plaintiff a better writ, an answer setting Up a defect of parties must state the omitted parties precisely and truly and facts should be alleged showing that they are necessary parties. * * * So an answer setting up nonjoinder of plaintiffs must distinctly set up such defense and spéeifically show wherein the defect consists and who should have been joined as parties.” (31 Cyc. 219, 220, 221, and cases cited.)
In Conklin v. Fox, 3 Mont. 208, action was brought -on an account for goods sold, alleging that Fox with two others were
In the case of Zabriskie v. Smith, 13 N. Y. 322, 64 Am. Dec. 551, the question was raised as to whether, under the rule stated above, the court could dispose of the subject matter of the suit in its entirety; the court held that: “Partners are joint tenants of all partnership effects; * # ' * joint tenants are not owners of separate shares. Each joint owner has title to the entii’ety. * * * I am, therefore, of opinion that where the defendant permits one or more of several joint tenants to sue alone * * * the recovery should be for the damages sustained by all the joint tenants.”
Runkle was personally present and took part in the trial, asserting no rights therein and disclaiming any interest in the cattle; if a partner, he was a joint tenant with Church; and, Church having secured judgment for all damages sustained, Runkle could not thereafter maintain an action against appellant. As was said in the ease of Gilland v. Union Pac. Ry. Co., 6 Wyo. 185, 43 Pac. 508, the plea of misjoinder or nonjoinder of parties was regarded at common law, and is still regarded under the Codes as a dilatory defense of which, to be availing, timely advantage must be taken. If the facts established on the trial are true, defendant-is'in no worse position than he would be in an action by the joint tenants, and his substantial rights have not been affected. Having failed to plead a nonjoinder of parties plaintiff, defendant waived the objection, and the lower court was justified in disregarding his motion for a directed verdict, and in its refusal of the offered instructions on the subject.
Affirmed.