3 Ind. 78 | Ind. | 1851
Bryan Poach and Dennis Long, partners, trading under the firm of Roach and Long, brought an action of debt in the Jefferson Circuit Court against John Nicklaus. The suit was commenced in 1849, and is founded on a promissory note given by the defendant to the plaintiffs. The note is as follows:
“$135 78. Madison, April 2, 1849. Ninety days after
The defendant pleaded in bar, substantially, as follows :
That on the 8th of November, 1847, the defendant and one George Dapput were partners, doing business under the name of John Nicklaus and Co., and, as such partners, they became indebted to the plaintiffs in the sum of 747 dollars and 78 cents, for goods sold, work and labor, and money paid. That on the 20th of June, 1848, the defendant and said Dapput, still being partners as aforesaid, paid to the plaintiffs 612 dollars, parcel of said 747 doldollars and 78 cents; leaving a balance due to the plaintiffs from the defendant and said Dapput, as partners as aforesaid, of 135 dollars and 78 cents.
That on the 6th of July, 1848, the defendant and said Dapput dissolved their partnership, and said Dapput, for a valuable consideration, agreed with the defendant to pay to the plaintiffs the said debt of 135 dollars and 78 cents; of all which the plaintiffs then had notice.
That on the 11th of October, 1848, on an account being stated by and between the plaintiffs and said Dapput of and concerning said last mentioned sum of money, and the interest thereon, there was found due to the plaintiffs from said Dapput, on account of that money and interest, the sum of 140 dollars and 55 cents, for which sum the said Dapput then gave to the plaintiffs his promissory note, which note the plaintiffs accepted and received for and on account of said 135 dollars and 78 cents and interest.
That up to the time of the giving of said note, the only evidence of said indebtedness was an open account kept by the plaintiffs with the defendant and said Dapput.
That afterwards, at the October term, 1848, of the Bartholomew Circuit Court, and before the commencement of this suit, the plaintiffs, in a suit on said note, recovered judgment against said Dapput for 140 dollars and 69
That, afterwards, on the 2d of April, 1849, the plaintiffs represented to the present defendant that the said sum of 135 dollars and 78 cents, balance of the account aforesaid, was still unpaid, that they had not taken the note of said Dapput, nor recovered judgment against him, for said debt, nor settled the same in any other manner.
That at the time those representations were made, the present defendant resided about forty-five miles from where said Dapput resided and then was, and from where said judgment was rendered; and the defendant, relying on the truth of said representations, and supposing himself liable to pay said balance of 135 dollars and 78 cents to the plaintiffs, and in consideration of that balance, and for no other consideration, executed to the plaintiffs the note in the declaration mentioned.
That the consideration of the note now sued on was the same as, and was identical with, the consideration of the note given as aforesaid to the plaintiffs by said Dapput, except that the latter note included interest on the 135 dollars and 78 cents.
That, therefore, the note in the declaration mentioned was given without consideration. Verification.
The plaintiffs demurred to the plea. The demurrer was sustained; and final judgment rendered for the plaintiffs.
Whether the plea is valid or not is the only question in the cause.
The plea is in bar of a suit on a promissory note. The most important facts stated in the plea, are the following : The present defendant and one Dapput having, as pai'tners, contracted a debt with the plaintiffs, dissolved their partnership. Dapput, afterwards, gave to the plaintiffs his own note for the amount of said debt and interest, which note the plaintiffs accepted for and on account of that debt. The plaintiffs then sued Dapput on his said note, and recovered judgment against him. The present defendant, afterwards, relying on certain false representa
We are of opinion that this plea is valid, on the ground that the plaintiffs, t>y obtaining a judgment against Dapput on his note, which they had taken on account of the partnership-debt, had discharged the present defendant from that debt. The said partnership-debt, contracted by the present defendant and Dapput, must be considered, in a Court of law, as a joint debt, and not as a joint and several one. If one of two partners be sued for a partnership-debt, the defendant may plead in abatement the non-joinder of the other. That could not be done, if the debt was joint and several. The original debt, therefore, being joint only, the plaintiffs had but one cause of action for that debt, and could be entitled, of course, but to one judgment on that cause of action. Where the contract is joint and several, the law is otherwise: there the creditor nqay proceed against each debtor separately till the debt is satisfied. The doctrine, that where the debt is joint only, the creditor can have but one judgment, is very clearly settled in a late case in the English Court of Exchequer. There the plea to an action of debt stated, that the contract declared on was made by the plaintiff with the defendant and one Smith, and not with the defendant alone; and that the plaintiff had previously recovered a judgment against said Smith for the same debt. That plea was held, on demurrer, to be good. The Court there said—
“ If there be a breach of contract, or wrong done, or any other cause of action by one against another, and judgment be recovered in a Court of record, the judgment is a bar to the original cause of action, because it is thereby reduced to a certainty, and the object of the suit attained, so far as it can be at that stage; and it would be useless and vexatious to subject the defendant to another suit for the purpose of obtaining the same result. Hence the legal maxim, ‘ transit in rem judicatami — the cause of action is changed into matter of record, which is of a higher nature, and the inferior remedy is merged in the
There can be no doubt, therefore, but that the plaintiffs in the present suit, by recovering a judgment against Map-put for the partnership-debt, discharged the now defendant from all liability for that debt.
But after the defendant was so discharged from the partnership-debt, he gave the note now sued on for the same debt. We must, therefore, inquire whether, although the defendant had been previously discharged, this suit will not lie.
We shall not extend this opinion by examining the question whether, had the plaintiffs not made the misrepresentation alleged in the plea, the suit could have been sustained. It is quite sufficient for the determining of this part of the case, merely to refer to that misrepresentation, which was, that the plaintiffs, at the time the note in question was given, falsely represented to the defendant that no judgment for the partnership-debt had been recovered against Dappwt. The plea alleges that the defendant, relying on the truth of that representation and others, gave the note in question. That misrepresenta
The judgment is reversed with costs.
Cause remanded, with instructions to the Circuit Court to permit the plaintiffs to reply to the plea.
