Davis v. Willis, 47 Tex. 154

Davis v. Willis

47 Tex. 154 | Tex. | 1877

Moore Associate Justice.

The plea of non est factum imposed upon the plaintiffs the necessity of proving the execution of the note thus impeached by the defendants, to entitle them to a judgment upon it. But, while it was necessary to prove the due execution of the note by the defendants, or by their authority, the plaintiffs were not restricted by the plea or the practice of the court to a particular order for the introduction of the testimony upon winch they relied to prove its. execution and establish defendants’ liability for its payment.. While it evidently seems more methodical, and in stricter accordance with its natural sequence, to introduce evidence *160tending to show- the execution of the note by the defendants, and its obligatory force as to them, before the note is allowed to go to the jury, it is unquestionably within the discretion of the court to permit the introduction of the evidence in a different manner. If the plaintiffs prove all the facts which are requisite to make out their case, the defendants have no right to complain of the order in which the evidence to establish their liability has been presented to the jury.. This is merely a matter of practice, and may be regulated and controlled by the court, according to its discretion. And, unless it clearly appears that the order or manner in which the evidence went to the jury, tended in some way to mislead or. embarrass them in regard to it, this court will not interfere or attempt to control the District Court in the exercise of its discretion in such matters.

• The plaintiffs in the court below proved that Davis, Calvert, Hanna and Hardy had been partners until within a few months before the date of the note;' that in carrying on the partnership business they had considerable dealings with plaintiffs’-firm, and that they were justly indebted to plaintiffs’ firm by open account to the amount for which said note was given; and that said note was executed in the name of the firm of which defendants were partners, in settlement of this account, by Calvert, one of its members. These facts, in.our-opinion, are sufficient, if not rebutted, to warrant the inference of the continuance of the partnership to the date of the note, and consequently to prove, prima fade, its execution by each and all of the members of the firm, by Calvert. The court, therefore, did not err in overruling the objection of the defendants to the reading of the note to the jury.

But if the evidence of the plaintiffs did not show, with sufficient clearness• and certainty, Calvert’s authority to-bind defendants by giving a partnership note in settlement of the account at the date of its execution, this deficiency was fully supplied by the evidence of the defendants. And, therefore, if it could be said that the -court erred in permitting .the note *161to be reacl to the jury-, on the testimony adduced by plaintiffs, to prove its execution, the evidence for the defendants, and also that introduced in a subsequent stage of the case by the plaintiffs, show it to have been an immaterial error, and one which has resulted in no inj ary to appellants. For if there was any deficiency in the original evidence of the plaintiffs, it was fully supplied by that of the defendants and by plaintiffs in rebuttal; from which it clearly appears that although the partnership of Davis, Calvert, Hanna & Hardy had been dissolved a few months before the note was given, no publication of the dissolution of the partnership was made, and that no notice of it whatever was given to plaintiffs. And although there was evidence from which it is argued that plaintiffs must have known of the dissolution of defendants’ firm previous to the execution of the note by Calvert, this fact certainly affords no support to the objection to reading the note in evidence, or, as we may here remark, to the exception to the charge given by the comí on this point.

The rule, by which the jury were instructed that they should be guided in determining whether the note executed to plaintiffs’ firm by Calvert was binding upon defendants, is believed to be in strict conformity with the law as held by this court in the case of White v. Tudor, 23 Tex., 641; Id., 27 Tex., 585, and is fully supported by ’ the authority of all the standard commentators, as well as the unbroken current of decisions upon the subject by the courts elsewhere. (Pars. on Part., 441; 1 Daniel on negotiable Instruments, sec. 375; Pars. on Notes and Bills, 120.)

The only other error which has been discussed by counsel for appellants which we deem it material to consider, is that calling in question the validity of the judgment from the non-joinder in the action of all the surviving members of the firm by whom the notes sued upon were given.

It is an elementary principle, as to which there can be no ground for controversoy, that partnership notes import at *162law—although it is otherwise in equity—a joint, and not a joint and several obligation. (1 Pars. on Notes and Bills, 136; Robertson v. Smith, 18 Johns., 459; Ward v. Johnson, 13 Mass., 148; Trafton v. U. S. 3 St. C. C. R., 646.)

And it is, generally speaking, a fundamental rule, where an action at law is brought upon joint notes or obligations, that all the joint contractors should be made defendants, and that plaintiffs may be compelled to join them all, if advantage be taken of the omission to do so in due time and by a proper plea. That we may determine the time and manner in which this must be done, we must bear in mind that although the promise or undertaking is joint, yet each of such obligors or contractors is bound for the full and entire performance of the contract or undertaking for which he is thus bound. And while, generally speaking, all of the obligors or contractors should be joined in the action, this general rule is not without exception at common law as well as by the statute. Therefore it cannot be said, although it may appear upon the face of the declaration or petition that all of the joint contractors have not been sued, and no good and sufficient reason is given for not joining the others, that the plaintiffs have not stated or shown a valid cause of action or ground for a recovery against the defendants who are sued. And if, in fact, there is no good ground for the failure to sue those who are not made parties, as those who are sued are bound for the entire contract, they may certainly, if they choose to do so, waive their right to have the other parties joined in the suit. As it is for the interest of the defendants, and not an absolute requirement of law, that actions upon such contracts aro to be brought in general against all of the joint contractors, if they fail to take advantage of the omission in due time, and in the proper manner to enforce their right, they cannot afterwards complain.

It is a plain deduction from these propositions, and the general rules of pleading in actions at law, that the non-joinder of a joint obligor as a defendant should bo pleaded in *163abatement, unless the abatable matter is alleged or appears in the plaintiffs pleading, And it seems accordingly to have, been uniformly ruled, from the time of the year-books to the present day, that advantage can only be taken of such nonjoinder by plea in abatement, “except where it is shown in the petition that parties omitted are living; ” and then, as the abatable matter appears on the petition, objection can be made by the defendant without reiterating by plea in abatement the matters alleged by the plaintiff. (Gould’s Pl., 271, et seq.; Cabbell v. Vaughn, 1 Saund., 291, notes, 4 and f, g; Anderson v. Chandler, 18 Tex., 436.)

It may be insisted, however, that although it was unnecessary for plaintiffs to have alleged that George Hardy was dead, notwithstanding the fact appeared on the face of their petition that he was a party to the notes upon which the suit was brought, yet as his death was a material fact in determining their right to a judgment against the defendants, without malting him a party, the truth of their averment of his death was put in issue by the general denial, as well as by defendants’ special answer, and it was, therefore, unnecessary, on the principle, for the defendants to plead, in abatement, that he was a joint maker of the notes, and was still living, to enable them to take advantage of Ms nonjoinder. But, as plaintiffs had made the averment of his death, and thereby tendered the defendants an issue in regard to it, although not required to do so, it was incumbent upon them to have proved it. (Gould’s Pl., 273, sec. 6.) And this, I confess, is tl\e inclination of my own mind. The corn’t, however, holds, that it was just as necessary for the defendants to plead in abatement, that Hardy was living, if they wished to take advantage of his non-joinder, as it would have been, if it merely appeared in the petition that he was a joint maker of the notes, and nothing had been said as to his death, in which event, it would unquestionably have been necessary for the defendants to have pleaded in abatement the fact that he was still living.

*164But, if it should be conceded that the fact whether Hardy was living or dead when the suit was brought, was put in issue by the pleadings, we think it may very properly be held that the defendants have waived its determination by the jury. As we have said, it is the privilege of the defendants to have all the joint obligors made defendants to the action, which they may waive, if they choose; and they are presumed to have done so, by their failure to plead the non-joinder in abatement, when such plea is necessary. And, it would seem, that the like presumption should be . indulged, if they failed to invoke the action of the court, or to have the jury pass upon the abatable fact, if otherwise presented than by plea in abatement. It appears from the record, that the attention of the jury was not called to this question, either by the ‘charge of the court, or by the’instructions asked by the defendants. If the defendants had desired the jury to pass upon the issue made by the petition and answer, as to whether or not Hardy was living or dead, we must suppose they would have made some allusion to it in the instructions which they asked should be given to the jury. And their failure to do so warrants the inference that they thought it unnecessary. This inference is not repelled, as has been heretofore decided by this court, by the failure of the jury to pass upon it being made one of the grounds of the motion for a now trial.

The defense being of a character going to the form of the proceedings, and not to the fact of defendants’ liability for the entire amount for which they were sued, a different rule is applicable than could be invoked where the defense went to the merits of the action.

There being no error in the judgment,.of which appellants have any just cause to complain, it is affirmed.

Affirmed.