This wаs an action by the appellees against the appellant, and was based upon two notes executed by I. B. Guynn & Bro., payable to the appellees, and upon the following written instrument:
“ This agreement witnesseth, that whereas Israel B. Guynn oand James R. Guynn' have this day assigned, transfer
“W. H. Durham.
“ I. B. Guynn.
“ James R. Guynn.”
The complaint was in two paragraphs, which were, in substance, the same. Each alleged the execution of the notes by Guynn & Bro., copiеs of which were filed with and made a part of each paragraph, the execution of the foregoing agreement, the transfer of the personal and the conveyance of the real property, in pursuance of said ageement, the sale thereof by Durham, and a demand upon him to pay the said notes, and his refusal, and the conversion of the proceeds of such property to his own use.
To the complaint the following demurrer was filed : “The defendant demurs to the plaintiffs’ complaint, for the following grounds of objection, to wit:
“ i. Said complaint does not contain facts sufficient to constitute a cause of action against defendant.
“ 2. There is a defect of parties defendants, in this, to wit, ±he said I. B. Guynn & Bro., who signed said notes sued
The demurrer was overruled, and appellant excepted, and this ruling is assigned for error and presents the first question for our decision.
It is insisted by counsel for appellees, that the demurrer is too defective in form to raise any question of defect of parties ; that it is not sufficient to say that Guynn & Bro. should have been made defendants, but that their Christian names should have been given. It has been several timеs held, that it is not sufficient for a demurrer to say, that there is a “ defect of parties but that the demurrer should say, that there is a defect of parties plaintiff or defendant, and should point out the person or persons who should be made a party or parties. Gaines v. Walker,
In Vansickle v. Erdelmeyer, supra, the court say: “ But •the demurrer, though it alleges a defect of parties, does not, as required by the practice sanctioned by this court, point out or name thе person or persons who should be, but who are not made parties.”
The objects of the rule are to enable the court to determine whether the persons named are necessary.pаrties, and, .if so held, to punish the party whose duty it may be to bring them in and make them parties, with their names.
This brings us to determine whether the demurrer sufficiently points out or names the persons who, it is alleged, should have been made defendants.
The second ground of demurrer is : “ There is a defect of parties defendants, in this, to wit, the said I. B. Guynn & Brother who signed said notes sued on, and with whom said contract sued on was made, should be made parties defendants.”
The cоmplaint alleged, that Israel B. Guynn and James B. Guynn, doing business under the firm name of I. B. Guynn &
Were Israel B. Guynn and James R. Guynn necessary parties ? By the contract between them and Durham, he agreed to compromise and settle all their debts. The object of this suit was to compel Durham to pay to the appellees a debt which they alleged I. B. Guynn & Brother owed to-them, and such indebtedness was evidenced by notes. In. the written agreement between Durham and Guynn & Brother, the debts which he was to сompromise and settle-were not specified. They were designated as all the debts, of Guynn & Brother. The appellees had not obtained any judgment upon the notes against Guynn & Brother. If the-contraсt had specified the debt due the appellees, then Durham would have known that the debt was correct; or if the-notes had been merged in a judgment, the same result would'have followed. We think the makers of the notes should-have been made defendants. The case of Hardy v. Blazer,
We think there was a defect of parties defendants, and that the court erred in overruling the demurrer to the complaint.
Did the court err in sustaining the demurrer to the fourth paragraph of thе answer? The object of that paragraph was to obtain a reformation of the written contract. It is alleged that the contract, as agreed upon, was, that Durham was to pay all the debts оf Guynn & Brother, if the property conveyed and transferred was sufficient for that purpose; that by mistake the draftsman omitted the qualification, but provided for the payment of all of such debts; that the proрerty received by Durham from Guynn & Brother would not pay more than twenty cents on the dollar of their debts. Prayer that such instrument should be reformed, so as to speak the true intention of the parties. The averments in the answer would have been sufficient to have brought the case within the rule laid down in Allen v. Anderson,
Did the court err in overruling the motion for a new trial ?
The second paragraph of the answer alleged, that before Durham had notice that the appellees would accept the benefits of said contract, he and the said Guynns had cancelled and rescinded the same. The proof in support of this paragraph of the answer is most conclusive, and there is none contradicting it. Thеre is no evidence that the appellees at any time notified Durham that they accepted the terms of the said contract. If the promise of Durham had been made directly to the apрellees, the law would have presumed their acceptance; but the promise was made to Guynn & Brother. Durham acted as the trustee of the creditors of Guynn & Brother. The promise being made to thе debtors, for the benefit of the creditors, authorized the latter to maintain an action on such promise, if they accepted the provision made for them. It was said by this court, in Miller v. Billingsly,
The complaint alleges a demаnd of payment of Durham before the commencement of the action. In such a case, a demand is necessary. There was no próof showing an acceptance by the appellеes, or a demand upon Durham. The court should have granted a new trial.
The judgment is reversed, with costs; and the cause is remanded, with directions to the court below to sustain the demurrer to the complaint for defect of parties, and for further proceedings in accordance with this opinion.