254 Pa. 548 | Pa. | 1916
Opinion by
This was an action of assumpsit by Emil Funk against Mahlon A. Young, who was a copartner with Frederick G. Emmott, trading as Emmott Tea & Coffee Company. In his statement of claim plaintiff averred that, between May 31, and November 16., 1907, at the request of Emmott, he loaned to the firm various sums of money aggregating |2,145, which had not been repaid to him, and for which he brought this suit. Defendant in his affidavit of defense denied that between the dates mentioned in the statement any partnership existed between himself and Emmott, and also denied that the money was loaned to the firm, or used in the firm business. He further alleged that the claim was res adjudicata. On the trial, it appeared from the evidence that the money was advanced by plaintiff upon the dates set forth in the statement. Both plaintiff and Emmott testified that the loans were made to the partnership and were intended
On July 28, 1910, judgment was entered on the two judgment notes, against both partners, but the court struck off the judgment against the present defendant. Plaintiff then brought an action of assumpsit against him to recover the amount of the two judgment notes, and obtained judgment against him. On appeal to this court, the judgment was reversed, as reported in Funk v. Young, 241 Pa. 72, on the ground that a partner has no implied power to bind his copartner personally by a note under seal, with power of attorney to confess judgment. On May 29,1913, the present suit was brought to recover the amount of the original loans. The trial judge held that the judgment in the former case was not a bar to this suit, and refused a request for binding instructions in favor of defendant. He submitted the case to the jury to determine whether the loan had been made to the partnership or to Emmott individually, and whether plaintiff had any knowledge or reason to believe that Emmott intended to appropriate the money to other than partnership purposes. The jury determined both of these questions in favor of plaintiff and returned a verdict for the full amount of his claim, with interest. A motion for judgment n. o. v. was dismissed by the court in banc, and judgment was entered on the verdict. Defendant has appealed, and his counsel argue that the judgment in the former suit between these same parties, was an adjudication of the question here raised. That contention is answered by the opinion of this court in that case, Funk v. Young, 241 Pa. 72. Our Brother Mestrezat there said (p. 75): “The action was assump
Counsel for appellant further contends that the former judgment is a bar to the present suit, because, even if plaintiff did not include in his first suit his claim for money loaned, he might have done so, and is -therefore concluded by the judgment. We cannot accept this suggestion as sound. Had there been any cause of action upon the notes, it would have been separate and distinct from, and subsequent to, that upon the claim for money loaned. The two causes would not have existed at the same time, as the claim for money loaned would have passed into the claim upon the notes. If defendant had been liable on the judgment notes, he would not have been liable upon account of the loans. But if, as was the case, he never became liable upon the judgment notes, then his liability upon the loans remained, and was unaffected. Counsel relies on the decision in Roney v. Westlake, 216 Pa. 374, 378, from which he quotes a paragraph which concludes: “A party cannot try his action in parts. The judgment is conclusive, not only of the matters contested, but as to every other thing within the knowledge of the complainant which might have been set up as a ground for relief in the first suit.” This language is, however, part of a quotation from 1 Freeman on Judgments, Section 272, p. 494, which quotation contains also the following sentence: “If the claim is specifically embraced in the pleadings, the presumption is, that it was presented at the trial, and considered in the rendition of the judgment.” Our rule in Pennsylvania was stated by Mr. Chief Justice Woodward in Converse v. Colton, 49 Pa. 346, 352, and repeated by Mr. Justice Green in Haviland v. Fidelity Ins. Trust & Safe Dep. Co., 108 Pa. 236, 244, as follows:
The assignments of error are overruled, and the judgment is affirmed.