Wise v. Cobb

100 So. 189 | Miss. | 1924

Ethridge, J.,

delivered the opinion of the court.

The appellees, Cobb and Fitzgerald, sued R. M. Wise and W. B. Wise, as partners, alleging the assignment of certain accounts by the Wise brothers to the plaintiffs and the guaranty that said accounts were true and correct, and averring that certain items were untrue and incorrect. The instrument relied on as a guaranty reads as follows:

“For value received, I hereby transfer and assign to Cobb and Fitzgerald, Jonestown, Mississippi the above listed accounts showing, the amounts due on this date opposite name of debtor and I guarantee the said accounts to be true and correct. Clarksdale, Mississippi, June 29th, 1917.

‘£ [ Signed] W. B, Wise. ’ ’

There was a denial of the partnership under oath by R. M. Wise. There was also an affidavit denying the indebtedness to the plaintiffs and denying the correctness of the account sued upon; also a plea of the general issue and a plea of the statute of limitation, and a plea of the statute of frauds.

It appears that R. M. Wise and W. B. Wise were formerly partners, and were engaged in business as such at Jonestown, Miss., and that they first sold to Cobb and Fitzgerald their lands, stock of goods, and storehouse in the month of December, 1916. At the time of this purchase the plaintiffs, Cobb and Fitzgerald, would not buy the book accounts and other partnership securities. There was no proof that a partnership existed between R. M. Wise and W. B. Wise on June 29, 1917, at which date the above assignment was executed by W. B. Wise. There is proof in the record by R. M. Wise that the partnership was dissolved after the sale of the storehouse and goods to the plaintiffs and that in January, 1917, for a nominal consideration R. M. Wise sold to W. B. Wise his interest in said accounts. There was other proof tending to show that W. B. Wise conducted some kind of business and that goods were sold to him as an individual. There was some proof in the record that one of the members of the plaintiffs’ firm had some conversation with R. M. Wise in reference to the accounts but no statement as to a partnership existing at the time, nor was any contract made with R. M. Wise. The entire dealings were between W. B. Wise and Cobb & Fitzgerald in so far as the assignments and notes were concerned. W. B. Wise did not testify as a witness in the case.

At the conclusion of the evidence the defendant R. M. Wise, moved the court to exclude the evidence and to grant a peremptory instruction as to R. M. Wise because the evidence does not show or connect R. M. Wise with the subject-matter of the lawsuit, nor that he is in any manner liable to the plaintiffs; and, second, that the suit was brought against R. M. Wise and W. B. Wise as a suit on a joint obligation, and the evidence shows it is not an obligation of both partners, but the several obligations of W. B. Wise, and that there is no written evidence of liability or promise of R. M. Wise or any promise on the part of either defendant as to the three hundred three dollars and-fifteen cents item, and that it comes within the statute of frauds; third, that all of the items sued for are shown to be on an oral contract or account, and that the statutes of limitation have run against all of such items; fourth, that it is shown that there is no partnership in existence at the time of making the agreement sued on, or any of them, and therefore no partnership agreement shown, and if there is any liability it would be against W. B. Wise, and not the defendants jointly. _ '

_ The court granted the plaintiffs a charge to the jury that they should find against W. B. Wise in the sum of three hundred eighty-five dollars and eighty-six cents, as he signed the agreement of guaranty, and the amount of the contract is undisputed, and, further, that they should find for the plaintiff against R. M. Wise if they believe that in signing the guaranty W. B. Wise was acting both for himself and R. M. Wise, and further instructed the jury that, if they believe from a preponderance of the evidence that there had been such a firm as Wise Bros., composed of R. M. Wise and W. B. Wise, and W. B. Wise had been acting as the agent for this firm in the transaction of its business, and that plaintiffs knew this, and that at the time of the purchase of the accounts plaintiffs relied on this practice, and believed that W. B. Wise was so acting, and believed that he was dealing with the firm of Wise Bros., and had received no notice that "this firm was dissolved, then R. M. Wise is estopped to deny that he is not liable on the guaranty, and is estopped to deny that W. B. Wise was his agent in the transaction.

The court below refused the defendants an instruction that under the facts and circumstances of the case oral testimony is not admissible and is not to be considered to vary or contradict the terms of the written contract or agreement attached to the declaration set out above. Defendant also requested and was refused a charge that in this case the written agreement is upon its face conclusively the contract and agreement of W. B. Wise, and is in no wise the contract and agreement of Wise Bros., composed of R. M. Wise and W. B. Wise, and, unless from the evidence in this case the plaintiffs have established by a clear preponderance of the evidence that such-written agreement was not the agreement and contract of W. B. Wise, but was the contract of the partnership of W. B. Wise and R. M. Wise, then it is the duty of the jury to find for the defendants.

There was a judgment and verdict against appellants, from which they appealed jointly, and signed the bond reciting “R. M. Wise and W. B. Wise, principals, and S. H. Friedman and Sam J. Avery, sureties.” This.bond is a supersedeas bond.

The partnership having been denied under oath, it was encumbent upon the plaintiffs to prove the existence of the partnership at the date of the contract for the purchase of the accounts and notes, and, failing so to do, they are not entitled to recover of E. M. Wise.

It further appears that E. M. Wise did not sign the written guaranty, and is not bound thereby, the guaranty being the individual undertaking of W. B. Wise, and not the undertaking of W. B. Wise and E. M. Wise as partners.

The appellants insist that the plaintiffs are not entitled to recover against W. B. Wise, for the reason that the suit is declared on a joint liability, and not a joint and several liability, and rely upon the case of Kimbrough v. Ragsdale, 69 Miss. 674, 13 So. 830, in which case the court announced the doctrine that under our joint and several debtor statute the statute did not intend to permit a plaintiff to declare upon a joint contract and recover upon a several one. In that case the parties defendant in the suit were not partners, but one of them was the owner of the building and the other was a contractor who erected the building'under contract, and the materialmen sued both jointly for the purchase price of certain material. This case, however, is not applicable to the suit before us, because the declaration declares against the defendants as partners, alleging that the subject-matter of the suit was a partnership liability. The liability of partners is joint and several, and not'a joint liability. Dinwiddie v. Glass, 111 Miss. 449, 71 So. 745; Hattiesburg Hardware Co. v. Pittsburg Steel Co., 115 Miss. 663, 76 So. 570; Fairchild v. Grand Gulf Bank, 5 How. 597. Therefore the plaintiffs in the present suit were permitted to declare- against the partnership and recover against the one who is liable under the proof. The plaintiffs could have dismissed as to E. M. Wise at any stage of the proceedings before verdict and proceeded against W. B. Wise upon his guaranty. Therefore W. B. Wise is liable, the jury having found that certain of the accounts guaranteed were not true and correct.

It is insisted that the judgment must be affirmed at all events because the appellants executed a joint appeal supersedeas bond, and that both the appellants and the sureties were liable thereon for the amount of the judgment against W. B. Wise, and that it can make no difference whether R. M. Wise was liable or not originally because he is now liable if the judgment against W. B. Wise is valid under section 58, Code of 1906 (Hemingway’s Code, section 34), which reads as follows:

“Appeal bonds shall be sufficient if signed by one or more of several appellants, with sureties as required by law, and, in case of the affirmance of the decree or judgment complained of, the judgment of affirmance shall be entered against all the appellants in the same manner as if all had signed such bond. But if the decree or judgment be affirmed as to some and reversed as to others of said appellants, the judgment of affirmance shall be entered only against those as to whom it is affirmed, and the sureties on the appeal bond. ’ ’

And under the cáse of Terry v. Curd, 66 Miss. 394, 6 So. 229, holding the sureties liable in case the judgment be affirmed as to other parties. This is true of the sureties upon the bond, but it is not true of the appellant R. M. Wise, who signed the bond as a principal, and not as a surety. Not having signed as surety, he is not liable as surety, and is entitled to have the judgment reversed as to him, with his cost.

The judgment will therefore be affirmed as to W. B. Wise and reversed and dismissed as to R. M. Wise under authority of Bank of Philadelphia v. Posey, 130 Miss. 530, 825, 92 So. 840; Id., 130 Miss. 825, 95 So. 134.

Affirmed in part; reversed in part.