Virginia-Carolina Chemical Co. v. Fisher, 58 Fla. 377

58 Fla. 377 | Fla. | 1909

Hocker, J.,

(after stating the facts.) — The assignments of error embrace the rulings of the trial judge on the demurrers to the special pleas of the defendants, and the rulings on the demurrer of the defendants to the replications of the plaintiff. These rulings involve the sufficiency of each and every one of the special pleas, for the ruling on the demurrer to the replications reaches back to the sufficiency of the substance of the pleas themselves.

As to the original pleas numbered one, three, four and five, and amended pleas numbered one and four, they one and all set up in substance that the defendants did not execute the notes sued on as a copartnership, or that they never were a partnership under the name of F. A. Fisher Company.

Rule 65 of the Rules of Circuit Court in Common Law Actions requires that in actions on promissory notes a plea must traverse the drawing or making, or endorsing, or accepting, or presenting, or notice of the dishonor of the bill or note. • Neither of these pleas traverse in direct terms the making of the notes sued on by the defendants.

In the case of Marx v. Culpepper, 40 Fla. 322, 24 South. Rep. 59, the defendants were sued as partners for goods sold and delivered. They severally pleaded in abatement that neither was at the time of pleading, nor on the date mentioned in the declaration, nor at any intermediate time, a member of a copartnership composed of defendants doing business as Culpepper & Dupont, or otherwise. On demurrer this court held these pleas presented immaterial issues and were bad. It was held though the declaration alleged a partnership in the defendants, that it alleged a joint liability and it was immaterial whether defendants were, or were not partners, that “not only are members of a partnership actually existing jointly liable for partnership debts, but when persons contract as partners, or hold themselves out to the public as such, or allow themselves to be so held out, they may be jointly liable though no partnership in fact existed.

There is no distinct allegation in any one of these pleas that the notes sued on were not executed by the defendants, and no distinct allegation that they were executed by a corporation. The defendants may have been stockholders in a corporation known as the F. A. Fisher Company, and yet may have dealt with the plaintiff so as to make themselves liable to the plaintiff as partners, or as individuals. It seems to us that these pleas presented no defense to the suit.

The fifth amended plea seems also to us to present no defense to this action. Granting that the F. A. Fisher Company was adjudged a bankrupt by the United States District Court and discharged from all its corporate debts, there is in this plea no direct allegation that the notes and other indebtedness sued on were made and contracted by the F. A. Fisher Company as a corporation, and not by the defendants as partners, or under such circumstances as would render them individually liable. Nor is there any allegation that the liabilities sued on in this case, were adjudged in the bankrupt court to be liabilities of the corporation. It may well be that the plaintiff might have waived its alleged rights against the defendants and have proven its claims in the bankruptcy court against the alleged corporation. But there is no allegation that it did so. We do not see how the fact that the alleged corporation was adjudged a bankrupt and discharged from its debts could affect the liabilities of the stockholders as partners or as individuals. Corey v. Perry, 67 Me. 140. This plea is intended to be one of res adjudicata, and it is essential in such a plea that the parties must have appeared in the same capacity in the former, as in the latter suit. 24 Ency. Pl. & Pr. 734. In such a plea there must be (1) identity in the thing sued for; (2) identity of the cause of action; (3) identity of persons and parties to the action; and (4) identity of the quality in the persons for or against whom the claim is made. Id. p. 778; Yulee v. Canova, 11 Fla. 9, text 56; also see McKinnon v. Johnson, 57 Fla. 120, 49 South. Rep. 910. The adjudication by the bankruptcy court established the status of the corporation described as the F. A. Fisher Company as a bankrupt with all the legitimate consequences flowing from that adjudication, but it does not distinctly appear from the plea that the claims sued on in the instant case were claims against the corporation. 1 Remington on Bankruptcy, §§ 444-5-6-7; Fowler v. Stebbins, 136 Fed. Rep. 365.

We next consider the sixth amended plea filed by Mrs. M. El Edwards alleging that she was a married woman when the notes and debts sued on were executed and contracted, and the replication thereto to the effect that after the death of her husband she still continued to be a member of the alleged partnership of the F. A. Fisher Company, which was in possession of a part of the fertilizers and received the moneys therefor in trust for the plaintiff, and thereby ratified and confirmed the making of the notes and the contracting of the indebtedness and thereby rendered herself liable therefor.

This court has been committed to the doctrine that a married woman’s note is void since the case of Hodges v. Price, 18 Fla. 342, and has also been committed to the doctrine that a married woman cannot be a member of a partnership since the case of DeGraum v. Jones, 23 Fla. 83, 6, South. Rep. 925. We know of no constitutional or statutory changes affecting these decisions. It is laid down in 2 Page on Contracts § 931, “that as a married woman’s contract is void and not voidable it is incapable of ratification by any agreement or conduct after the woman acquires the power to make contracts whether such power is acquired by the death of 'the husband or by her obtaining an absolute divorce from him, or by a change in the law giving her power to make contracts, &c. In obiter some dissent from this view may be found. Under some statutes moreover a contract of a married woman may be voidable only and subject to ratification. Ratification must be at least as formal, even under these statutes as an original contract. It must also be effected by conduct unequivocally intended as a ratification,” &c. It seems to us that the plea of Mrs. Edwards if true was sufficient to protect her from any judgment in this case imposing personal liability upon her, and that the replication under the authorities cited set up no sufficient reply to the plea. The court therefore did not err in sustaining the demurrer to this replication.

Several other questions are presented by the assignments of error, but it seems to us that they depend upon those which we have discussed. It seems to us that the parties should be permitted to reform the pleadings in this case so as to present squarely and directly the issues, first, whether the notes and debt sued on were contracted and made by the F. A. Fisher Company as a corporation or second by the defendants as individuals or as partners. In the case of Duke v. Taylor, 37 Fla. 64, 19 South. Rep. 172, this court has clearly laid down the law relating to the conduct of business in this State by a foreign corporation, and it is useless to repeat'here what is there expressed. So far as we can discover from the facts alleged in the pleadings it was not possible for the bankruptcy court to have adjudicated the questions involved in this suit. The facts in this case are unlike those in Bluthenthal v. Jones, 51 Fla. 396, 41 South. Rep. 533, in which no question was raised as to the character in which the parties dealt with each other.

The judgment of the Circuit Court is reversed and the case remanded for further proceedings.

Taylor and Park hill, JJ., concur. Whitfield, C. J., and Shackleford and Cockrell, JJ., concur in the opinion.