247 F. 1007 | 3rd Cir. | 1918
Since the opinion in these cases was published (247 Fed. 667, -C. C. A.-) they have been reargued, and have been carefully reconsidered. In two or three particulars we inadvertently fell in error, and are glad to make the correction. The opinion states (247 Fed. 667, — C. C. A. —-) that the Seaboard Bank, Edward Hutchins et ah, and J. H. Purdy “proved their respective claims and participated without objection in the individual estaie of J. S. Kuhn and in the individual estate of W. S. Kuhn.” This .was a mistake, and we withdraw the italicized phrase. We also said (247 Fed. 668,-C. C. A.-): “Of the general right of Purdy to participate in the individual estates of each of the makers of said note, no question was raised, or indeed could have been. So, also, of the general right of Purdy to prove his note and participate in the partnership estate of W. S. Kuhn & Co., no question was, or indeed could have been, raised, because the proof was that the proceeds of the note were borrowed for and were used in and by said partnership of W. S. Kuhn & Co., and this noto was carried in the books of said firm as «. partnership indebtedness.” For these sentences wo substitute the following: "The general right of Purdy to participate in the individual estates of each of ilie makers of the note was claimed and adjudged by the District Court without appeal therefrom. So, also, of the general right of Purdy to prove his note and participate in the partnership estate of W. S. ICulm & Co., no question can be raised, because the proof was that the proceeds of this note were used in and by the partnership of W. S, Kuhn & Co., and the note was car
But, after these corrections have been made, jve are unable to see that the question presented for decision has been materially changed. It remains as before, Should the claimants have been permitted to make double proof of their claims? And on this point we continue to believe that the evidence before us warrants the application of the American rule. We shall not discuss this disputed question. Those who wish to pursue it may be referred to Re Farnum, Fed. Cas. No. 4,674, to the note in 39 L. R. A. (N. S.) 391, and to 3 R. C. L. § 49. But we do not assent to the conclusion stated in 3 R. C. L. that double proof is only to be allowed “where the double claim [is] based upon the joint obligation of the firm, and also an independent obligation or undertaking of the individual partner,” if this statement means that the “independent obligation or undertaking of the individual partner” must be based on a separate writing (e. g., an indorsement), or on a separate oral contract. We can see no sufficient reason for such a requirement. In our opinion the partnership obligation and the separate obligations of the individual partners may (as in the pending cases) be contained on the face of the same instrument. If the evidence show that the firm as such and the individual partners as such have bound themselves by the same act, the. result is that three (or more) contracts have been entered into at the same time and by' the same transaction. And in that event, as in any other case of a joint and several obligation, each of the contracts thus entered into should be followed by its appropriate consequence. Here it was proved that each “joint” contract was a firm contract, while the “several” contracts, of course, bound the makers individually. -The decree of affirmance heretofore entered will not be disturbed.