16 Wash. 439 | Wash. | 1897
The opinion of the court was delivered by
Respondent, as receiver of the firm of Lynch & Jose, instituted this action against G. E.
The appellant assigns as error the order of the court sustaining respondent’s demurrer to the affirmative answer. He urges that the pleading was sufficient to show that there was a novation, and we think his contention must be upheld. The rule is thus stated in 16 Am. & Eng. Enc. Law, p. 900:
“ In the case of a retiring partner it is well settled that he is not discharged from liability for the debts of the old firm even though the continuing partner, or the new firm, agrees with him to pay them, and, in general, the creditor is not to be affected or given any new rights, by an arrangement by, or between, his debtors to which he is not a party. But, if the creditor assents to such an arrangement, or agrees to accept the continuing partner or new firm as his debtors, and releases the retiring partner or the old firm, then a novation of the debt is effected.”
See, also, the authorities cited there in support of the proposition, many of which we have examined and find to fully support the doctrine of the text.
See, also, 3 Addison on Contracts, (Am. Notes by Abbott & Wood), foot page 843.
In 1 Bates on Law of Partnership, § 505, the learned author says:
“The creditor’s promise to one partner to release him, although made after dissolution upon the retirement of such partner, when not accompanied by a*442 promise of the other partner to the creditor to assume the entire debt, or by a change of security, is a nudum pactum, because founded on no consideration whatever. . . . But if the other partner promise the creditor to assume and pay the entire debt, and the creditor promises to look to him alone, a substitution of debtors is effected, and the other partner is released.”
Respondent urges that appellant is not entitled to have this court review the order of the superior court which sustained, the demurrer. His contention is that “the appellant should have stood by the order of the court sustaining the demurrer, permitted judgment to go against him without further contest, and then have appealed from that judgment.” His theory is that appellant, by proceeding to trial upon the issues raised by the denials contained in his answer, and by asking leave to further amend (which was denied), thereby waived his right to urge as error the order of the court sustaining the demurrer. He also urges that an order sustaning a demurrer is not an appealable order, and cites in support of the latter proposition, Mason County v. Dunbar, 10 Wash. 163 (38 Pac. 1003). But the appeal in that case was attempted prior to the entry of a judgment in the action, and hence was premature.
Section 1, chapter 61, Laws of 1893, page 119, upon the subject of appeals, provides that any party aggrieved may appeal “ from the final judgment entered in any action or proceeding, and an appeal from any such final judgment shall also bring up for review any order made in the same action or proceeding, either before or after the judgment.” The demurrer in the present case did not go to the whole answer, but only to the affirmative defense attempted to be set up. It still left an issue of fact to be disposed of and appel
The further contention of appellant, that it sufficiently appeared from the affirmative answer that plaintiff had neglected to bring in a necessary party, cannot be sustained. As an independent defense, the answer was insufficient to show that one who was a partner at the date of the contract was not joined as a defendant in the action.
But for the error in sustaining the demurrer, the judgment will be reversed and the cause remanded, and the court below is directed to overrule the demurrer and proceed to a new trial of the action.
Anders, Dunbar and Reavis, JJ., concur.