Mellendy v. New England Protective Union

Aldis, J. In Loomis v. Barrett, 4 Vt. 450, it was held* that, in an action on book account, the non-joinder of a defendant need not be pleaded in abatement, but might be shown on the trial before the auditor. It is sought in this case to extend the principle to actions upon the common counts in assumpsit. It is said the declaration, as in book, does not show what the plaintiff’s claims are, and the defendant can not tell whether others are or are not liable jointly with him till he comes to trial. But the defendant can require a specification of the plaintiff’s claims, and the specification, unlike oyer in book account, is binding on the plaintiff. It is further said, that dilatory pleas by the rules of court must be pleaded by the fourth day of the first term, while specifications are not required by the rules to be filed at so early a day. And the opinion of Judge Washington in Jordan v. Wilkins, 3 Wash. G. C. R. 112, is cited to show that in such a case the evidence of the non-joinder should be received on trial under the general issue. But it may be observed in reply to these suggestions, that rules of court may be suspended or enlarged by the court in their discretion, but settled principles of law, such as that the non-joinder of a defendant must be pleaded in abatement, can not be so varied. In this case the defendant might have moved the court for a rule that the plaintiff furnish a specification immediately, and before the defendant be required to plead in abatement, and that the' time for pleading in abatement be enlarged, and upon such motion and proper proof it would have been granted ; for a plea, that there are other partners who ought to be joined, is one of substance to protect the defendant’s rights, and not a mere technicality or matter of form. In the case cited Judge Washington intimates, that, where by the practice the plaintiff furnishes the defendant with a copy of his account before lie-pleads, the defendant may there plead in abatement. In the 4 Vt. Judge Phelps assigns as a reason why the [35] matter may be shown on trial before the auditor, that the plaintiff in book account is not bound by his oyer. It is otherwise as to specifications in assitmpsit. By the act No. 7 of 1851 it is provided, that if it shall appear at any time before final judgment in actions on contract, that any other person should have been joined as a defendant, the action shall not be abated or defeated ; but the court may continue the cáse on proper terms, and summon in the party who ought to have been joined. This act secures fully the defendant’s rights, and makes pleas in abatement nugatory as to defeating the action. It is to be noted in this case that the defendant did not ask to have the ease continued and the other parties summoned in ; but insisted that the plaintiff could not recover against these defendants alone. He claimed a judgment, just as before the statute he would have been entitled to one, had he pleaded in abatement and proved the facts alleged in his plea. To have allowed this would have been to extend to him a greater privilege than he could have claimed under á plea in abatement. By omitting to plead the non-joinder, and by not moving to have the case continued and the other partners summoned in, he waived his objection on that ground. It is further urged on behalf of the defendants that if a specification had been tiled, it might have shown claims on which the defendants here joined were liable, and other claims on which these defendants and the parties omitted were jointly liable, — > that in such case a plea of' abatement would be useless, as it would not answer the whole declaration, and therefore that in such a case the plaintiff would be remediless if he could not show the facts under the general issue. It is obvious that this is an objection which in the case supposed, and prior to the act of 1851, presented a serious difficulty. It is one of the reasons assigned by the court in Loomis v. Barrett, why the non-joinder of a defendant might be shown in book account before the auditor. In the present cause it suffices to say that the supposed case does not exist. The plaintiff’s claim is for a simple item — a note for [36] $100, The objection in any case ■would seem to be obviated by the act of 1851; — for as there ought in the progress of a suit to' be a period in which every defence can be alleged and proved, we can hardly suppose that a court would refuse to allow the defendant to show the fact on trial and move to have the absent parties summoned in, when there was no other mode by which the facts could be made available. The court submitted the question of Wright’s authority as agent for the defendants to borrow money, to the jury, upon the proofs. The only question before us on this point is, did the testimony tend to prove such authority ? The facts proved were — that the defendants had but little capital and were obliged in order to carry on business, to borrow money; that they did borrow money; that their business was carried on by Wright as agent; that by the nature of their association the partners were not to act in the business of the company, except at regular meetings ; that the directors had a supervisory power, but that Wright was the general agent and active manager of their business ; that he borrowed money and gave notes therefor without consulting the directors, and that this was well known to the directors and authorized by them. When to these facts we add that there is no provision in their articles of association restricting the directors or the agent from so borrowing money for the business of the company — it would seem that, the evidence not only tended to prove, but might well have been considered by th<j jury as plenary proof of the fact in question. The defendants appear to have uniformly used before .the world the name by which they were sued, and in giving notes to have used the form of abbreviation by which this note was signed. Under the general counts there could be no question of Variance. 1 Judgment affirmed.