McCloskey v. Strickland

7 Iowa 259 | Iowa | 1858

Wright, C. J.

The demurrer in this case should have been overruled. Partners may be sued, either in their partnership name, or by setting forth their individual names, at the option of the plaintiff; Code, section 1690. Plaintiff, in this case, elected to set forth the individual names of the partners. Having done so, does he aver sufficient to fix and show the liability of English, as one of the partners? We think he does, with reasonable and sufficient certainty. His petition commences by setting forth the name of the plaintiff, and the names of the. defendants, constituting the late firm of Strickland & Co. He then proceeds to aver that he claims of these defendants a certain sum of money, which he alleges to be due him from them ; and the cause of the claim, he then says, is a promissory note, which these defendants executed and made. A copy of the note is given, which is signed, Franklin Strickland & Co. The reasonable meaning of these aver-merits is, that English was a member of the firm, and that, as such, he made the note, and was indebted to plaintiif thereon. Plaintiff might have used more words — might have averred more definitely, in the body of the petition, that Strickland and English constituted the body of the firm, and made the note as such; but, a fair and natural construction of all the language used, fully shows- that he had, against-English, (the party demurring,) a substantial cause of action, and more than this is not required. Section 1731. To say that the caption of the petition is not to be regarded, in construing it, would be to recognize a rule not warranted by our system of pleading and practice.

Judgment reversed.