Merwin v. . Ballard

Dick, J. The plaintiff alleges that he sold and delivered ■certain merchandise to the defendant. In the account of sale set out in the complaint, it appears that said merchandise was sold by plaintiff to Ballard & Joyner. The defen- ■ dant demurs, and assigns as cause of demurrer the non *169 joinder of the other joint purchaser, as a defendant in the action. At common law in actions ex contractu, the general rule is, if the contract be joint the plaintiff must sue all the persons, who either expressly or by implication of law made the contract. If one of them be dead, then upon suggesting that fact in the declaration, the action may be brought against the survivor alone, 2 Mod. R. 280. In general a person is presumed to be living until it be proved that he is dead, unless seven years have elapsed since he was heard of. 2 East, 313. In such actions brought against some only of several persons who should have been jointly sued, the defendants must plead the non-joinder in abatement, there being no other way of taking advantage of it; unless it appear on the face of the declaration, or some other pleading of the plaintiff that the party omitted, is still living, as well as that he jointly contracted, in which case the defendant may demur, & c. The statute (Rev. Code, ch. 31, sec. 84,) changed in some respects this rule of the common law as to the joinder of defendants in actions ex contractu, and u in all cases of joint obligations and assumptions of copartners in trade or others,” allowed suits to be brought against all or any of such persons thus jointly liable. The O. O. P., secs. 62, 392, virtually repealed this statute, except as to “ persons severally liable upon the same obligation or instrument, including parties to bills of exchange and promissory notes.” O. C. P., sec. 63. When the action is against two or more defendants and the summons is served on one or more, the plaintiff may proceed , in the manner provided by C. C. P., sec. 87. The rule of the common law requiring the non-joinder of defendants in actions ex contractu, to be pleaded in abatement, has also been changed, and the omission of a necessary party defendant may be taken advantage of by demurrer *170 when the defect appears upon the face of the complaint. C. O. P., sec. 95. We have thought proper to discuss the questions presented in the elaborate argument of counsel, but they do not govern the case before us, as the action is founded upon a. contract made prior to the ratification of the O. C. P.; such cases are governed by the law existing before that date-C. O. P., sec. 8, par. 3, 4. Under the statute above referred to (Bev. Code, ch. 31,. sec. 84,) the plaintiff had a right to sue the defendant separately upon the joint contract. The demurrer must be overruled, and as this case is governed by the old mode of pleading, the plaintiff is entitled to final judgment in this Court. Ransom v. McGlees, 64 N.. 0.17. Per Curiam. Judgment affirmed'..