94 So. 109 | Ala. | 1922
The sole question argued by counsel for appellant upon this appeal relates to the ruling of the court in sustaining the demurrer to the defendant's plea of set-off, which appears in the statement of the case. The only question therefore to be here determined is whether or not the bank may set off against the individual claim of M. V. Capps, deceased, the indebtedness to the bank by the partnership, Pioneer Peanut Oil Company, of which said M. V. Capps was a member.
It is well understood, and of course conceded, that, in the absence of statutory provision to the contrary, partnership contracts are joint and not several (15 Cyc. Plead. and Prac. 868; Ratchford v. Covington County Stock Co.,
We have a statutory provision long existing in this state, which authorizes the creditor to sue one partner for the obligation of all. Section 2506, Code 1907. But under the uniform construction given this statute by the decisions of this court it can avail the defendant nothing in this case. Our decisions are to the effect that this statute does not within itself constitute a partnership indebtedness joint and several, and that such was not the legislative intent, but only gave the creditor of a partnership the right to sue any member of the firm, and by such suit to change the nature of the partnership obligation from joint to joint and several. The statute was so construed from its earliest history, as disclosed in Hoyt v. Murphy,
"Under section 2605 of the Code, any member of a partnership may be sued for the obligation of all, and this has been the statutory regulation on that subject, since the act of 1818. Clay's Dig. p. 323. This statute has been the subject of repeated construction in this court, and has been several times re-enacted, with such construction upon it, and we must presume in its re-enactment the Legislature knew of the construction which had been placed on the former statute by the several decisions of this court, and adopted it as a part of the statute.
"The case of Hoyt, Ford Robinson v. Murphy,
Indeed, as we understand the brief of counsel for appellant, it is not insisted that this particular statute suffices to uphold the plea, but much reliance is rested upon section 2503 of the Code, which deals with joint promises in writing. This section reads as follows:
"When two or more persons are jointly bound by judgment, bond, covenant, or promise in writing of any description whatsoever, the obligation or promise is in law several as well as joint, and suit may be instituted thereon against the legal representatives of such as are dead, jointly with the survivors, and judgments rendered accordingly."
It is insisted that the plea shows a promise in writing, by and in the firm name, and that therefore it comes within the meaning of the foregoing section. We are of the opinion, *209
however, that this section is unrelated to section 2506, which deals with suits against a partnership and the members thereof, and was only intended to cover those contracts made by persons in their individual capacity. In Sandusky v. Sidwell,
Counsel for appellant refer us to the case of Ryerson v. Hendrie,
"The majority hold that 'the language of this section when fairly construed embraces partners.' In my judgment this section does not embrace partners but refers to instruments signed by several distinct persons in law. My reasons are briefly these:
(1) Partners are not mentioned in section 2764. It reads 'two or more persons,' not partners.
(2) The common law made many nice distinctions between joint, joint and several, and several obligations. Thus, if two signed a joint contract all must be sued, or the defendant could plead in abatement. Then, also, if two or more signed a joint and several contract the plaintiff must, by the common law, sue each separately or all together. Then, also, if two or more signed a several contract, not joint, a joint action against all could not be maintained. Nor could representatives be joined with survivors. Now it was to abolish these distinctions that section 2764 was enacted. If partners had been intended it seems strange they should not have been mentioned.
(3) Section 2764 occurs in the chapter on parties. In the majority view it embraces partners, and gives the right to sue each or all, or any number of them. Then why, if this be so, is there express provision made for the case of partners in the same chapter in 'parties to an action'? Why, in section 2785, is it provided that, 'a copartnership may also be sued in the individual names of its members'? The majority reason is, to prevent possible misconstruction. If so, why did it not read thus: 'A copartnership may be sued in the individual name of its members,' or any of them may be sued individually. In my judgment, section 2785 was intended to regulate the right of partners to sue and their liability to be sued, and the mode; and, being a distinct provision as to partners, the inference is quite clear and satisfactory to my mind, that the case of partners is not embraced and was not intended to be embraced in the prior section (2764) relating to joint and several liabilities by two or more distinct persons."
A partnership is not referred to as a natural person. Williams v. Wilson,
In Ratchford v. Covington County Stock Co., supra, it appears that a judgment was recovered against a partnership in its firm name, and suit then brought against defendants to the action upon that judgment, upon the ground that they were members of the partnership. The plaintiff's right to recovery was denied, and it was held his remedy was by suit against the defendants personally on the original demand.
Counsel for appellant insist that the note signed in the firm name, by virtue of section 2503 of the Code, is a joint and several obligation, and within the meaning of the language "when two or more persons are jointly bound." If this insistence is correct, an anomalous situation will be presented wherein the obligation of the partnership is of greater dignity and value than when it is reduced to judgment. It is not insisted by counsel for appellant that if the demand held by the bank against the firm was merely an open account that it could be set off against the plaintiff's claim, but that the fact that it is in writing brings it within the influence of section 2503, thereby converting the contract from a joint obligation to a joint and several one.
We are of the opinion that the Legislature did not intend so fine a distinction, and that these illustrations but serve to show that section 2503 has no reference to partnership affairs, as such, and is entirely unrelated to section 2506. The decisions construing this latter section make no distinction as to the obligation of the partnership, whether reduced to writing or verbal.
However, counsel refer us to several of our authorities, which they insist have made this distinction, and have construed section 2503 in conformity with their insistence. The case more clearly in point is that of Duramus v. Harrison,
The dictum above referred to, as to the construction of section 2503 of the Code, will not suffice for the application of the rule as to the construction of the statute and its reenactment with such construction upon it. This rule only has application where the construction of the statute was necessary for the determination of the cause, and therefore properly presented before the court.
We therefore conclude that the demurrer to plea 3 was properly sustained, and the judgment will be here accordingly affirmed.
Affirmed.
All the Justices concur.