9 P.2d 826 | Cal. | 1932
Plaintiff bank brought an action against the firm of "Clark-Parker Co.", S.N. Clark and John Doe as members of said firm, on a promissory note for $10,000. S.N. Clark was served with summons, and he alone appeared, and filed an answer denying liability, together with a counterclaim for services performed by him. Nearly three years later plaintiff moved to strike out the counterclaim on the ground that the obligation sued upon wasjoint, and the counterclaim was several. By this time the statute of limitations had run on any right to file a separate action for the value of the services. The motion was granted. Defendant Clark then moved for leave to file an amended answer and counterclaim to allege that the liability on the note wasseveral. In this regard he stated that "Clark-Parker Co." was a dissolved partnership, a fictitious party on the note, and that this fact was known to plaintiff. This motion was denied. At the trial, a substantial variance appeared between the note pleaded in the complaint and the note proved. As pleaded, there were two signatures, one below the other: "Clark-Parker Co. S.N. Clark." The actual note offered in evidence read: "Clark-Parker Co. by S.N. Clark." The court permitted plaintiff to amend the complaint to conform to the proof, but denied another motion by defendant to file an amended answer and counterclaim. A several judgment was thereafter rendered against Clark, the sole defendant.
[1] It is apparent that the court was in error in its rulings. Taking the note as pleaded, it contained the words "I promise to pay", and had two signatures: "Clark-Parker Co." and "S.N. Clark." The Negotiable Instruments Law provides: "Where an instrument containing the words `I promise to pay' is signed by two or more persons, they are deemed to be jointly and severally liable thereon." (Cal. Civ. Code, sec.
[3] The next order of the court permitted plaintiff to amend to conform to proof. As proved, the note read: "Clark-Parker Co. by S.N. Clark." The signature in this form was presumably deemed by the court to make him liable jointly with the partnership. Irrespective of the correctness of this conclusion, it is not clear how the court could again refuse to permit defendant Clark to amend his pleading and to offer evidence to show that the partnership did not exist at the time of execution of the note, and that the note was his individual obligation. Such evidence was unquestionably admissible.
By denying defendant the right to set up the counterclaim in this action, the court denied defendant all relief on it, for the statute of limitations had run on the right to file a separate suit. Thereafter, the court rendered judgment against defendant Clark alone. The error in its previous orders is thus made manifest. If a several judgment could be rendered against him, it necessarily follows that he could set up a several counterclaim.
The judgment must, of course, be reversed; but in view of the possibility of new facts being developed under new pleadings, it may be well to point out the misconception which lies at the basis of the original error. It is assumed by the trial court that if the liability on the note is joint, no several counterclaim can be set up by any one of the joint obligors. Section
The misconception of the lower court is based upon language inRoberts v. Donovan,
It therefore follows that regardless of whether the note is joint or joint and several, a several judgment against defendant Clark was proper, and the several counterclaim of this defendant was also proper. Any other view would be in plain disregard of our statutes, and would be contrary to the tendency toward a liberal extension of the right to counterclaim which has heretofore been pointed out by this court. (Terry Trading Corp.
v. Barsky,
The judgment is reversed.
Preston, J., Curtis, J., Shenk, J., Seawell, J., and Waste, C.J., concurred.
Rehearing denied. *301