40 Fla. 322 | Fla. | 1898
Plaintiffs in error instituted a suit against defendants in error, the praecipe styling the plaintiffs as George Marx and John Marx, partners as Marx Brothers, and the defendants as Andrew F. Culpepper and John E. Dupont, as partners as Culpepper & Dupont. The summons was served upon Culpepper, one of the firm and
The first count in the declaration is, that “George Marx and John Marx, partners doing business as Marx Brothers, plaintiffs, by M. C. Jordan, their attorney, complain of Andrew F. Culpepper and John E. Dupont, partners doing business as Culpepper & Dupont, defendants, of a plea of trespass on the case on promises; for that, whereas, the defendants, on the 26th day of April, 1893, were indebted to the plaintiffs in the sum of one hundred and four and 25-100 dollars for goods, chattels and effects before that time sold and delivered bjr the plaintiffs to the defendants at their request.” Other common counts are added, and the conclusion is, that “the defendants, though requested, have not paid the same, or either of them, or any part thereof, to the plaintiffs, but Refuse so to do,” to their damage, etc. Culpepper filed a plea in abatement to the suit in assumpsit by summons as follows, vis “that he is not now, nor was he on the 26th day of April, 1893, nor has he been at any intermediate time, a member of a partnership composed of this defendant and John E. Dupont, doing business as Culpepper & Dupont, or otherwise.” Dupont interposed a like plea for himself, and plaintiffs demurred. The demurrer was overruled, and issue joined upon the pleas. Upon the issues joined a verdict was returned for defendants upon which judgment was entered quashing plaintiffs writ.
The count of the declaration set out clearly alleges a joint liability against defendants for goods, chattels and effects sold and delivered to them by the plaintiffs before the 26th day of April, 1893. Partners, in the absence of a statute to the contrary, are jointly liable. Pollak v. Hutchinson, 21 Fla. 128; Tuttle v. Cooper, 10 Pick. 281. Not only are members of a partnership act
Authorities are numerous to the point that when a joint liability is alleged against two or more defendants, it may be sustained by proof of such liability without reference to a partnership relation, or by showing such relation without alleging it in the declaration. Swinney v. Burnside & Co., 17 Ark. 38; Brown v. Jewett, 18 N. H. 230; Maynard v. Fellows, 43 N. H. 255; Ward v. Dow, 44 N. H. 45; Lessing v. Sulzbacher et al., 35 Mo. 445; Ensminger v. Marvin, 5 Blackford, 210; Meacham v. Batchelder, 3 Pinney (Wis.), 281; Danaher v. Hitchcock, 34 Mich. 516; Mack v. Spencer, 4 Wend. 412. In Hyde et al. v. Moxie Nerve Food Co., 160 Mass. 559, 36 N. E. Rep. 585, a charge was refused to the effect that if it appeared from the proof that plaintiffs were not partners when the suit was commenced, they could not recover, and in approving this ruling the Supreme
The present suit is in assumpsit for goods sold and delivered by plaintiffs to defendants prior to the 26th
The judgment will be reversed, with directions to sustain the demurrer, and for further proceedings.