Fowler v. Kennedy

Cowles, J. The defendants were all members of the association on whose behalf the bark Griffon was bought and provisioned. The defendant Halsted belonged to it from the first. [350] Kennedy and Smith came into it early in January, 1849. The defendants were all members of the association before the bark was purchased, for they were the parties designated by the association to receive in trust for the associates the bill of sale of the vessel. The object of the association was to purchase a ship and provision her for two years, on board of which each associate or a representative was to go to California, to be absent two years. What business they were to engage in at California does not appear, but the agreement was that on the return of the vessel the bark was to be sold, and the persons going were to divide the profits of the enterprise. Two years’ stores were put in the ship. The full number of associates was made up to fifty before January 31, 1849, and consequently before the three defendants were appointed to take the bill of sale of the bark; for by the resolutions of 31st January, a committee of five was named to take the bill of sale, while it was not until the 28th of February following that the change was made and the defendants appointed. The provisions were all contracted for in January, and delivered between that time and the day of the bark’s sailing, and they were bought by a committee appointed by the association for that purpose. Under the above state of facts — and in regard to them, there was no contradiction in the testimony' — it seems to me it was at the most a question for the jury to determine whether all of the associates were not contracting parties through their committee, ánd all jointly liable for this purchase of goods. If the association was fully made up, and the defendants were all members, and a part of the object of the association was to make just such a purchase as this on joint account, and such purchase was made by orders of the associates, they were all liable, including the defendants. Even if the full number of fifty had not, at the time of the purchase, been made up, yet those who had signed the articles and ordered the supplies were liable, whether those who subsequently signed became jointly liable with them or not. One thing appears clear, and that is that the bill was incur [351] red by the orders of all those who had become members of the association at the time the bill was contracted, and there cannot be a reasonable doubt that at such time all of the defendants were members, and joined in directing this purchase to be made. It was, therefore, erroneous for the learned judge to hold that there was no proof of joint liability on which to charge the defendants. It is urged that if any liability on the part of the defendants is proved, it is one which was incurred by them jointly with others of the associates, and that all should have been joined in the action. The rule is the same since that it was before the Code in this respect. If a defendant insists that his liability is joint, and that others who are jointly liable with him shomld be joined in the action — as he always may where such is the fact — he must not only plead the non-joinder, but in so doing must point out all those who, as he claims, should be made parties defendant. In the language of the pleaders before the Code, if he pleads in abatement he must give the plaintiff a better writ, and with reason, for the defendant is always held to know who his associates in a contract are. But if the defendant fails properly to plead the non-joinder of parties defendant in an action ex con-tractu, he cannot set up such non-joinder afterwards. In such case, if the plaintiff establishes a cause of action, he will be entitled to judgment even though there are others jointly liable who are not sued. In this case the defendants, in the seventh division of the answer, plead a non-joinder of parties defendant, but while so pleading, they fail to point out the names of the parties who should be brought in as co-defendants with themselves. The answer in that respect is defective. The plaintiffs cannot be turned out of court for neglecting to bring in the other associates Avhen the defendants themselves, who well knew who they were, had failed to point them out. I think the learned judge erred in dismissing the complaint. I also think he should have submitted to the jury, under the proof, to say whether the defendants did not, in connection with others, authorize the supplies in question to be furnished, [352] for the proof would have sustained such a verdict if found, and then the defendants would have been liable as joint contractors with the other associates in this enterprise who ordered the provisions to be bought, and such a state of facts would have entitled the plaintiffs to a verdict in this action. The judgment dismissing the complaint should be set aside, and a new trial ordered — costs to abide the event.