Lippincott & Co. v. Behre

Lamar, J. (After stating the foregoing facts.) In the same action the plaintiff sued both the agent and the undisclosed principal. The. court sustained the contention that the defendants were not jointly liable, and therefore not jointly suable. • The [546] plaintiff thereupon elected to dismiss as to the American Soda Fountain Company, the undisclosed principal, and to proceed against Charles Lippincott & Company, the agent with whom the contract was alleged to have been actually made. ' Civil Code, § 3024. .. The latter thereupon demurred on the ground that the plaintiff, having brought an action upon what he claimed was a joint contract, could not thereafter proceed against a single defendant. Such may have been the rule at common law. But it has been changed in Georgia. In Wooten v. Nall, 18 Ga. 610 (7), 624, 626, attention was called tó the fact that even at law, where one of the parties dies, new parties may be made; and the court then proceeded to argue that the greater includes the less, and it is easier to strike than to add, saying that under the right to amend the pleadings at any stage and in all respects, the plaintiff could strike the name of any defendant who was not liable and proceed to take judgment as to the rest. Francis v. Dickel, 68 Ga. 256 (2), 258, is to the same effect, even though the suit was against those sued as partners. See Civil Code, § 5104. All through our reports there is a recognition of the rule that a misjoinder of parties or of causes of action is not fatal. Of course, if the liability is joint, then all those jointly liable must be sued. The plaintiff has no right to impose upon one the burden of a single obligation which was assumed, not severally, but jointly. He can not sue some of the contracting parties where all are liable as a unit, except in those cases where the statute itself has made the exception. Civil Code, §§ 5009-5015. . But where he sues defendants on the theory that they are jointly liable, and the evidence or the pleading discloses that some are not liable at all, or that some can not be joined in the same action, a case is presented which comes directly within the purview of our saving statute of amendments. Ellison v. Ga. R. Co., 87 Ga. 691 (2). Cox v. Henry, 113 Ga. 260, recognized the rule, though there the plaintiff in attachment failed to dismiss as to the defendant who was improperly joined. Assuming that the contract as signed bound Alfred Lippincott, and not Charles Lippincott & Company, there was nothing to prevent them, by reference or otherwise, from adopting this writing, or adopting the same terms as were contained in it. International Power Co. v. Hardy, 118 Ga. 512; Butler v. Tifton R. Co., 121 [547] Ga. 817. That it was adopted and the benefit of plaintiff’s services thereunder accepted and the payments thereunder made to him by the defendants sufficiently appears from the petition. The allegations that the defendants, in 1895 and 1896, changed some of the terms of that original agreement and extended the territory in which the plaintiff could work, and increased his commissions, are also sufficient to show that the defendants recognized and adopted the contract which had been made by Alfred Lippincott ““ representing Charles Lippincott & Company.” Nor do the amendments set up new causes of action. They are but modifications of the original agreement which by its own terms was not to be ended except on giving 30 days notice. The items in the account sued on are the same as those set out in the petition as originally filed. These amendments were offered for the purpose of showing why the plaintiff at one date could recover a greater rate of commissions than at another, and why he was entitled to commissions on sales made in States other than those named in the original writing. There was no error in overruling the demurrer. Judgment affirmed. All the Justices concur.