55 S.C. 528 | S.C. | 1899
The opinion of the Court was delivered by
The plaintiff brings this action, as a-corporation, against the defendants, as copartners in trade, under the name and style of The Charleston Cycle Company, to* recover the amount due on three accounts for goods sold and delivered, and for work and labor done at the requests of defendants; each of which accounts is set out in the complaint as a separate cause of action. The defendants, in their joint answer, set up as their defense a general denial of all the allegations in the complaint. The defendant, E. B. Welch, also filed a separate answer, in which he alleges that he alone was at the time mentioned and still is doing business under the name and style of The Charleston Cycle Company, and sets up two' counter-claims against the plaintiff upon which he demands judgment against the plaintiff. To the separate answer of the said E. B. Welch, plaintiff replied, admitting the allegation that the plaintiff was at the times mentioned and still is a corporation duly created under the laws of the State of Maine, and denies all the .other allegations contained in said answer. Upon this state of the pleadings, the plaintiff gave notice of
The case of Weisenfield v. Byrd, 17 S. C., 106, is also relied upon by appellant. But all that case decides, so far as the point we are considering is concerned, is that in an action on a partnership demand, the surviving partner and the representatives of the deceased partner may be joined as defendants. It will be observed that, in that case, the Court was at a loss to determine from the pleadings whether it was to be regarded as an action at law or a case in chancery. “It partakes of the nature of both.” And all that the case really decides is that, since the Code, legal and equitable causes of action may be united in the same action. How that affects our present inquiry, we are unable to conceive.
We will next consider the case of Bull v. Lambson, 5 S. C., 283, cited by appellant. In that case the action was brought against J. R. Lambson and D. G. Hough as copartners under the name of J. R. Lambson & Co. Service of the summons was accepted by Lambson for himself and Hough. At the close of plaintiff’s case, defendant moved for a nonsuit on the ground “that no copartnership, but only the individual liability of Lambson, had been proved.”
So, also, in the case of Dulaney v. Elford, 22 S. C., 304, the action was against Elford and Dargan as copartners— Dargan made default, and Mrs. Elford denied that she had ever been a partner. At the close of the testimony for plaintiff, Mrs. Elford moved for a nonsuit as to her upon the ground that there was no testimony that she was a partner, which motion was granted; but the plaintiffs were allowed to take judgment against “W. James Dargan, doing business under the name of Elford & Dargan.” Plaintiffs appealed, and the Court held that there being some evidence tending to show that Mrs. Elford was a partner, there was error in granting the nonsuit, and remanded the case for a new trial as to her. There was no ruling or decision as to the propriety of the judgment which was entered against Dargan, as he had made default and did not appeal. It is true that this Court did affirm the action of the Circuit Judge in refusing to allow judgment to be entered against “the effects of the firm of Elford & Dargan,” but no ruling was asked for or made as to the form of the judgment which was actually entered against Dargan. So that we do- not see how appellant can claim any benefit from that case.
The case of Baker v. Hornick, 51 S. C., 313, simply de
The North Carolina case of McAllister v. Milheiser, 23 S. E. Rep., 502, cited by appellants, is very different from our case. There the action was brought not only against the partnership, but also against the individuals composing such partnership, and the question was whether there was error in striking out a plea filed by one of the defendants in his own behalf, alleging that he had bought out the entire interest of his partner in the partnership assets and had assumed all the partnership liabilities, and setting up a claim which he had thus acquired against the plaintiffs. The Court laying stress upon the fact that the action was brought, not only against the partnership, but also against the persons composing the partnership, individually, held the plea to be good in that case, but were careful to avoid committing themselves as to what would have been the result if the action had been brought against the partnership only, as in the case which we are now called upon to decide. Besides, the Court might well have rested its decision upon the ground that the defendant having bought out all the partnership assets, and having thus become the legal owner of the claim which he sought to avail himself of as a set off, ■before the action was commenced, he might plead it as a set off in an action brought against him individually. That case, therefore, furnishes no authority for the position taken by appellant.
The case of Bank v. Winslozv, 30 Fed. Rep., 438, having been decided in a State where, by statute, all contracts which, at common law, are joint only, shall be construed as joint and several, certainly cannot be applicable here, where we have no such statute. The only other case cited by appellant, except those cited from the foot-notes of 17 Am.
The judgment of this Court is, that the judgment or order of the Circuit Court be affirmed.