47 Tex. 154 | Tex. | 1877
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
• 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
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
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
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.
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.