68 P. 323 | Cal. | 1902
Lead Opinion
Action brought to recover the sum of $1,170.36, alleged to be due to the plaintiff for goods sold to the defendants, Purington and Trumbo, by Knight Co., assignors of the plaintiff. The complaint was unverified, and the defendants separately answered by way of a general denial. The court found that the plaintiff's assignors sold and delivered to defendant Trumbo merchandise of the reasonable value of $1,710.78; that he had agreed and promised to pay the same, but that only $540.42 had been paid, and that there was $1,170.36 still due and unpaid from said defendant to plaintiff, and rendered judgment accordingly in favor of the plaintiff and against said defendant Trumbo, and in favor of *71 defendant Purington and against the plaintiff for his costs. The appeal of defendant Trumbo is upon the judgment-roll without a bill of exceptions.
The main contention on the part of the appellant is, that the action being joint against the two defendants, the finding that only one is liable is outside of the issues, and cannot sustain the judgment. At common law, in an action against two or more defendants for an alleged joint undertaking or contract, the judgment was required to be against all the defendants, or in favor of all, and in such case, if the plaintiff failed to establish a joint contract or undertaking, all the defendants were entitled to verdict and judgment, although it were proved that one of them would have been liable if the suit had been brought against him alone. But this is not the rule under the code, nor was it under the old Practice Act. In Rowe v. Chandler,
The allegations of the complaint are sufficient to support the judgment, and it does not concern the appellant that there is not a separate finding upon the issue made by the separate answer of his co-defendant, Purington. That omission does not in the least prejudice appellant. (Code Civ. Proc., secs. 452-475; IllinoisTrust Co. v. Pacific etc. Ry Co.,
The judgment is affirmed.
Garoutte, J., Harrison, J., Henshaw, J., and Beatty, C.J., concurred.
Concurrence Opinion
I concur. The point suggested for the first time in the department opinion, heretofore filed, was, that the contract found by the court was not the contract sued upon, and was therefore outside of the issues in the case. The complaint alleged a contract made between plaintiff on one side and Purington and Trumbo on the other. The court finds nothing in regard to the contract averred by plaintiff and denied by both defendants, but does find that another contract was entered into between plaintiff and Trumbo alone. No such contract having been averred, defendants were not called upon to admit or deny it, — as a matter of fact did not deny it, — and were not called upon to refute it by evidence.
This is the argument, but it ignores some of the facts. The complaint avers the sale of certain goods and the suit is to recover the price of these goods. In effect, the averment is, that they were purchased by the defendants; the finding is, that they were purchased by Trumbo. There is no bill of exceptions, and, for aught we can know, the issue tried below, with the consent of all parties, was whether the purchase of these particular goods was made by Trumbo. And since the court has made the finding, and no objection was made below or here, we will presume that such was the case. (Churchill v. Baumann,
The language of the complaint is not entirely irreconcilable with the proposition that the promise to pay for the goods may have been several, although a joint request was alleged. The implication is no doubt very strong that the promise was also joint. But since the parties went to trial upon the issue of the separate liability of Trumbo without objection, and even since the judgment neither in the court below nor in this court have made any such objection, we must suppose that the parties agreed that the issue tried was properly made by the pleadings.
McFarland, J., concurred in the concurring opinion. *73